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.
The tradition of permitting a legislative body to judge its own elections, returns, and qualifications was fairly uniform throughout England and America. Parliament had begun wresting control over elections from the Chancery (which was beholden to the crown) in the mid-sixteenth century. By 1624, the Parliament’s privilege of examining the election returns was undisputed.
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 (1833), 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. There have been a number of noteworthy cases decided by the House or the Senate under the clause.
In 1793, the Senate investigated the qualifications of Albert Gallatin, a rival to Alexander Hamilton and his economic theories, when the Pennsylvania state legislature elected him to the U.S. Senate. Born in Switzerland, Gallatin had been in the United States for thirteen years, but it was unclear whether he had been a resident of Pennsylvania for the requisite nine years. Two Senate committees, dominated by Federalists, found against him, and he was barred from the seat.
During the Civil War, the Senate judged whether James H. Lane of Kansas was entitled to be a Senator even though he accepted a Brigadier General’s commission shortly after arriving in Washington. Lane was apparently in violation of the Incompatibility Clause (Article I, Section 6, Clause 2). Even though the Senate Judiciary Committee found against Lane, the full Senate nonetheless accepted his credentials.
In 1935, West Virginia elected Rush D. Holt as Senator even though he would not be thirty years of age for another seven months. Holt promised he would not present himself to take the oath until his thirtieth birthday. He did so, and the Senate engaged in a long and contested investigation, eventually seating Holt on the ground that the requirement of thirty years of age applied only when the candidate took office.
The manner in which the House and Senate decided qualification cases suggests that the power was unreviewable in the courts. And 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 Qualifications and Quorum 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.
The convening of the House and the Senate of the First Congress in 1789 was in fact delayed until a quorum of Members arrived in New York to begin the business of the new government. 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 later found that the procedure was the “almost universally accepted commonlaw rule.” FTC v. Flotill Products, Inc. (1967). It continues to the present. Some concern has been raised over how Congress could constitutionally meet and reach a quorum in the event of a catastrophe that killed or left Members of Congress from gathering. The House would likely be unable to correct the Constitutional requirement of a majority quorum through the clause that allows it to change its proceedings (Rules Clause, Article I, Section 5, Clause 2). Like the Twenty-fifth Amendment, which sought to regularize presidential succession, a Constitutional amendment may be the only solution to solve the potential problem for Congress to be able to operate during a national emergency.
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 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 or a majority of the Senate may order the Sergeant at Arms of each respective chamber to compel the attendance of absent Members. By motion of the requisite number of Members of the House or of the Senate, the Sergeant at Arms is authorized to make arrests of recalcitrant Members with the aid of police, an event that has occurred a number of times during the history of Congress.
Congressional Quarterly's Guide to the Congress (4th ed. 1991)
Paul E. Salamanca & James E. Keller, The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members, 95 Ky. L.J. 241 (2007)
Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361 (2004)
United States v. Ballin, 144 U.S. 1 (1892)
Reed v. County Commissioners, 277 U.S. 376 (1928)
Barry v. United States ex rel. Cunningham, 279 U.S. 597 (1929)
FTC v. Flotill Products, Inc, 389 U.S. 179 (1967)
Powell v. McCormack, 395 U.S. 486 (1969)
Roudebush v. Hartke, 405 U.S. 15 (1972)
Morgan v. United States, 801 F.2d 445 (U.S. App. D.C. 1986)