Wednesday, July 15, 2015

The Symbolic Vote Scandal

Being back in the states has made me nostalgic for when I was a grad student. The nostalgia primarily comes out around book stores, because that was one of my favorite pastimes while I lived in San Diego. A friend of mine who I haven't seen since I left grad school and finished my Ph.D. is on the verge of defending her dissertation in Ethnic Studies. All of this is for some reason reminding me of my dissertation. The days I would spend in coffee shops working on it. The hours spent poring through books and articles researching it. The times I would spend while driving across California contemplating it and then rushing to write hasty notes on anything I could before a random, but precious thought escaped me.

One of the central scandals that drove my dissertation was the issue of "symbolic" or "fake" votes for the delegates from the colonies of the United States. It was a site that was so rich with material for illustration my arguments, I could have written so much more about it. I am still amazed at how many people in Guam today have no inkling of this issue. Have no idea that whenever the Democrats are in power it is not that Guam has a non-voting delegate, but they have a delegate whose vote only counts so long as it doesn't count. Read the article covering the initial scandal from 1993 below.


Delegates Get "Symbolic" Floor Vote
An article from CQ Almanac 1993

House Republicans lost a legal challenge to a new House procedure that allowed the delegates from the U.S. territories and the District of Columbia to participate in some floor votes. But they won a larger point, as federal judges agreed that the delegates’ votes could never determine the outcome of legislation. And they exploited rules giving them opportunities to wipe out the delegates’ votes in many cases.

The controversy concerned an amendment to the rules of the House, first adopted by Democrats in December 1992 and then, with a significant modification, approved by the full House on Jan. 5. It allowed the resident commissioner of Pueno Rico, the delegate from the District of Columbia and the delegates from the U.S. territories and possessions (Puerto Rico, Guam and American Samoa) to vote whenever the House was considering legislation in the Committee of the Whole — a parliamentary framework under which the entire House met to debate and amend important legislation.

The delegates already had the right to vote in the House's regular committees. (Rules changes, p. 8; background, 1992 Almanac, p. 14)

The new rule was the brainchild of Delegate Eleanor Holmes Norton of the District of Columbia, who convinced her Democratic colleagues that there was no legal distinction between voting in committees, which delegates were already allowed to do, and voting on the floor in the Committee of the Whole.

Leaders made a key modification shortly before the rule was formally adopted by the full House. Designed to placate members who were nervous about giving equal voting privileges to delegates who often represented fewer citizens or areas that did not pay federal taxes, it required an automatic revote if the delegates’ votes made the difference between winning and losing. With the exception of D.C. residents, voters represented by delegates did not pay federal income taxes. Their populations varied from 47,000 on American Samoa to 3.6 million on Puerto Rico. Most congressional districts had more than 550,000 constituents.

Republicans were not assuaged. All five of the new votes would come from Democrats — effectively halving the 10-vote gain the GOP won in the 1992 elections.

“It's a joke. It's an abuse of power,” said Minority Whip Newt Gingrich, R-Ga.

Republicans ridiculed the provision requiring automatic re-votes. “When they vote when it counts, it does not count,” Robert S. Walker, R-Pa., said of the delegates, “and when it does not count, it counts.”
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Gop Court Challenge

House Minority Leader Robert H. Michel, Ill., joined by a dozen other GOP members and three citizens, challenged the constitutionality of the new voting procedure in a suit filed Jan. 7 in U.S. District Court in Washington.

At a Feb. 9 hearing, they argued that the rule violated the Constitution's first article by granting delegates legislative power. Article I stipulated that all legislative power was vested in the House and Senate and those bodies were “composed of members chosen … by the people of the several states.”
Republicans offered three main arguments at the hearing:
  • The Committee of the Whole was not a committee, as the Democrats claimed. It was, they said, tantamount to the full House and should be governed by the Constitution's provisions detailing House powers.
  • A vote in the Committee of the Whole effectively franchised citizens of the territories and the District of Columbia at the expense of state citizens and their representatives, whose voting power was diminished by the greater vote totals.
  • Delegates were granted committee voting privileges by law, not House rule, and the House could not expand those powers without statutory authority granted by the full Congress and the president.
Democrats’ arguments in support of the rule were presented in a brief submitted by House General Counsel Steven R. Ross and by Deputy General Counsel Charles Tiefer, who represented House Clerk Donnald K. Anderson and the delegates in the case.

Tiefer, whose 1989 book “Congressional Practice and Procedure” was cited in both briefs, said at the hearing that the Constitution allowed the House to “determine the rules of its proceedings.” Furthermore, he said, the delegates’ role in Congress had been open to interpretation.

According to the defendants’ brief, the Northwest Ordinance of 1787 gave the first territory delegate “a seat in Congress.” The next delegate, William Henry Harrison, also from the Northwest Territory, forged the passage of the Land Act of 1800 and chaired several committees. Other delegates gave up their committee vote to secure other congressional privileges. Delegates secured the vote in standing committees in the early 1970s.

Ross and Tiefer also argued that the Committee of the Whole's actions were “merely advisory” and did not determine the outcome of legislation.

U.S. District Judge Harold H. Greene ruled on March 8, in Michel v. Anderson, that the rule was constitutional, but only because of the provision requiring an immediate, members-only revote on any issue decided by delegate participation.

The decision gave a technical victory to Democratic leaders who backed the rule, but one that the court said was legislatively hollow.

“The bottom line is that a delegate's vote can never make the difference between winning and losing,” Greene wrote. He declared that delegate votes would be “plainly unconstitutional” without the provision for automatic re-votes.

With the provision, he said, delegate votes were “symbolic” and worth “nothing” in the give-and-take of legislative drafting.

While hailing the judge's decision to hear their challenge and his warnings about the unconstitutionality of full voting privileges, Michel and several other Republicans appealed the decision, filing briefs July 26.

On Jan. 25, 1994, the U.S. Court of Appeals for the District of Columbia Circuit reaffirmed Judge Greene's ruling. As Greene had, the appeals court issued a preemptive warning to those who might want to expand delegate voting privileges.

Republicans said they were unlikely to appeal.

Extra Votes In House

As soon as the delegates cast their first votes, the Republicans began a parliamentary counterattack. On Feb. 3, the House took up the family and medical leave bill (HR 1) and considered amendments in the Committee of the Whole. Delegates helped vote down two Republican amendments.

But after two amendments were approved, Republicans were able to take advantage of a House rule that allowed members to demand a new vote on any amendment adopted in the Committee of the Whole. On those votes, taken by the full House, the delegates could not vote. (Votes 19, 20, p. 6-H)
Republicans kept up the pattern throughout the year, almost always demanding a second vote on an amendment adopted in the Committee of the Whole. On occasion they would allow an amendment to be approved by voice vote, then demand a roll call after the Committee of the Whole procedure was finished.

This enabled the GOP to wipe out the delegates’ votes even when they did not determine the outcome, as required to trigger the automatic revote. The discretionary opportunity to call for a second vote did not apply, however, to any amendments rejected in the Committee of the Whole.
Republicans said the repeat votes underscored for voters the unjust Democratic autocracy in the House. Democratic leaders maintained that the ploy made the GOP look dilatory and on the side of gridlock.

No vote was automatically retaken in 1993, because the delegates’ votes never determined the outcome of a vote. But revotes demanded by Republicans were common, and they contributed to an extraordinary number of House roll calls. In 1993, the House took 597 votes (excluding quorum calls), 26 percent more than in 1992, and the highest number of recorded votes since 1979. Sixty-nine were revotes or separate votes on amendments that had been approved in the Committee of the Whole.

(The outcome changed in four of the 69 times a second vote was taken.)

Delegates Defend Votes

Delegates said the GOP was unfairly singling them out for partisan reasons. They called the floor tactics annoying, mean-spirited, even harassment. “If the 435 members have to be protected from the wiles of five delegates … then the country's in trouble,” said Delegate Robert A. Underwood of Guam.

The delegates maintained that the votes were worth the fight. Norton insisted that the voting privilege increased the delegates’ participation in the legislative process. “It has made me more effective because of the many kinds of interaction I now have with my colleagues on the House floor,” Norton said.

But GOP members said the improved ties and some votes were evidence that the delegates had more power than they should.

For example, Gerald B. H. Solomon of New York, the GOP's leader on the Rules Committee, said delegates could be responsible for a House vote to kill the Selective Service System. On June 28, delegates contributed four “nays” to a 202–207 vote trying to preserve funding for the military draft office during consideration of the VA-HUD appropriations bill. Had the vote been 202–203, Solomon said, “I would have been able to turn that around” before the vote closed. (Vote 278, p. 68-H)
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Document Citation
"Delegates Get ‘Symbolic’ Floor Vote." In CQ Almanac 1993, 49th ed., 75-76. Washington, DC: Congressional Quarterly, 1994.

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