Qualifications and Quorum

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.

Article I, Section 5, Clause 1

The tradition of permitting a legislative body to judge its own elections, returns, and qualifications was fairly uniform throughout England and America. At the time of the Constitutional Convention, eight states had similar clauses in their state constitutions and the Framers approved the provision without debate. According to Justice Joseph Story in his Commentaries on the Constitution of the United States, it was a necessary attribute of the separation of powers. If that power, Justice Story wrote, were "lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger." Further, Story declared, the power allowed each House to "sustain the free choice of its constituents." The only objections to the clause in the state ratifying conventions were by those who wanted the power to judge elections to reside with the state legislatures, as it had under the Articles of Confederation.

The power to judge elections extends to investigations of fraud. It includes the power to subpoena witnesses and to impose punishment for perjury. In Morgan v. United States (1986), then-Circuit Judge Antonin Scalia declared that the House's determination as to which of two candidates had been elected was nonjusticiable under this clause, a position supported in dicta by previous Supreme Court cases. However, when the House of Representatives sought to expand the definition of "qualifications" beyond those expressly listed in Article I, Section 2, Clause 2, that it was judging under this clause, then the Court not only found the issue justiciable, but struck down the action by the House. Powell v. McCormack (1969).

The second section of the clause, dealing with the numbers necessary to constitute a quorum, caused more concern. All agreed that the two-thirds requirement under the Articles of Confederation had been a major hindrance. Nathaniel Gorham, however, objected to even a simple majority, as it might cause a "great delay" in the legislature's business. Most of the debate revolved around the fear of factions. John Mercer of Maryland thought that "[s]o great a number will put it in the power of a few by seceding at a critical moment." George Mason answered that by having a quorum set at less than a majority would "allow a small number of members of the two houses to make laws." The attempt to fix a specific number of votes for a quorum failed and the majority provision remained in the text. The provision allowing day-to-day adjournment by a smaller number permits the business of each house to lie over without the need of continually calling for a quorum.

For some decades after the Constitution, the House of Representatives did not pass legislation unless a full quorum of the House approved the bill. Those present but not voting could prevent a quorum. In 1890, the House changed its rules to determine that a quorum is satisfied if a majority of members are present, even if they withhold their votes on a particular bill. The Supreme Court upheld that procedure in United States v. Ballin (1892), and it continues to the present.

The third and final part of the clause, authorizing each house "to compel the attendance of absent members," introduced by John Randolph and James Madison, also passed without debate. It was an additional guard against the power of a minority to abuse the quorum process. Justice Joseph Story declared that the provision did away with any apprehension that a minority could "subvert the fundamental principle of a republican government" by intentionally preventing the formation of a quorum. Under current practice, fifteen Members of the House of Representatives or a majority of the Senate may order the Sergeant at Arms of each respective chamber to compel the attendance of absent Members.

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David F. Forte
Professor of Law
Cleveland-Marshall College of Law