In many ways, Article I, Section V of our Constitution is a continuation of Section IV in that it established the rules and powers of Congress. The first part gives Congress some judicial power while, at the same time, it eliminates one of the biggest tricks parties used to block legislation.
Article I, Section V, Clause I reads, “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.”
As a professor, this clause would see my red pen if I was grading it as it is all written in one sentence while covering several different ideas. This is most noticeable is with the first few words, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” I believe there should be a period to separate the argument from the rest of the clause. This clause gives Congress some judicial powers and states that if there are any controversies about an congressional election, then it is Congress’ sole authority to resolve it. This includes irregularities in voting or qualifications of those elected. Congress is permitted to investigate and can subpoena witnesses to testify.
The Senate did not waste time in putting this clause into action. In 1793, Pennsylvania elected Albert Gallatin to the Senate. Gallatin, a Swiss immigrant who had already made a name for himself amongst the Jeffersonian Republicans, had been a delegate to the Pennsylvania Constitutional Convention and the Pennsylvania General Assembly. He was considered a financial expert and openly opposed Alexander Hamilton’s economic plan. When Gallatin was elected to Senate, he became an even more outspoken opponent of Hamilton and leader of the opposition group.
Pennsylvania Federalists used Clause I to question Gallatin’s qualifications and declared he had not been an American citizen for the required nine years. Gallatin had immigrated during the Revolution and paperwork was hard to find. Federalists were unsure if their accusation was true, but felt it was worth trying to oust such an outspoken Republican.
Gallatin fought back, claiming he had lived in America for 13 years but the main document he had only dated back to 1785. Still uncertain of Gallatin’s citizenship, the Senate basically did nothing, hoping the threat was enough to silence him.
They were wrong.
Instead, Gallatin tore into Hamilton on the Senate Floor, laying out all the economic difficulties Hamilton would bring. Federalists, who now held the majority, had no choice and thus created a committee, comprised of four Federalists and three Republicans, to investigate.
Gallatin maintained that he had met the citizenship requirement for his office, but he also claimed it would cost too much time and money to prove it. Finally on Feb. 28, 1794, the Senate, using Clause I, voted 14-12 to remove Gallatin from his position. Even the other Pennsylvanian voted against him.
It is important to remember that in a previous installment of Constitution 101 that Congress cannot add additional requirements to serve.
In 1967, the House of Representatives voted to exclude Rep. Adam Clayton Powell Jr. (D-N.Y.) from being reelected after he was accused of misappropriation of funds and paying his wife for services she had not done. Powell sued and the Supreme Court in Powell v. McCormack found that Powell met all the qualifications for a Representative and that the House could not add any new requirements to serve. This ruling established the House can judge the qualifications of its members as it did with Gallatin’s citizenship, but it cannot add to the qualifications.
A good example came in the 2020 election in Iowa’s Second Congressional District.
In the one of the closest elections in U.S. history, Republican Mariannette Miller-Meeks won by only six votes. Democratic challenger Rita Hart filed a notice with the House of Representatives that 22 votes had not been counted which would have declared her the winner. The Democratic controlled House took up the complaint and launched a controversial investigation that Republicans claimed was trying to overturn a fair election. Eventually Hart withdrew her complaint under pressure citing “toxic campaign of political disinformation.” So, even though the House never voted on her challenge, it shows how Clause I can be used today to challenge a vote.
Constituting a quorum
Constituting a quorum, the percentage of members necessary to conduct official business, was a major discussion for our Founders. Some felt that if the percentage was too high, there would never be enough congressmen available to conduct business, making it impossible to ever get anything passed through both houses. While gridlock is better than no gridlock, there is a limit to the idea.
On the other side, if the number was too low, a small number of central states could dominate Congress. It was assumed that because of location (there was no capital yet, but they were meeting in Philadelphia) that it would be hard for the extreme Northern and Southern states to be on call, but middle state congressmen could rush to Congress on a moment’s notice to make a quorum when necessary.
This idea was so important that James Madison wrote Federalist No. 58 over it, saying a quorum must at least be a majority if it was to accurately reflect the will of the people. Yet if you require more than a simple majority then, “In all cases where a majority are competent to act, the minority must be ruled by the majority. If more than a majority be necessary to make a quorum, the power of the minority might be made equal to that of the majority.”
Madison meant that if too many are required for a quorum, the minority could block legislation simply by not showing up. In the end, a simple majority was determined the best choice.
The biggest change to quorum rules came in 1890 with House Speaker Thomas B. Reed (R-Maine). Before then, a quorum was counted by voting. Congressmen could be physically present but not vote which was figured against the count for a quorum.
By only counting the votes instead of members present, it allowed the minority party to block legislation. If they voted no, they would lose, but if they did not vote then there would not be enough members for a quorum, and so nothing could pass. However, when Reed and the Republicans took over the House during a debate, he ordered a roll call and used that number to determine a quorum. Democrats actually hid under their desks and sprinted out of the room so they would not be counted. Reed then ordered the sergeants-at-arms to gather up the Democrats who fled and compel them back into the chamber as outlined in this clause: “and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.”
“Reed’s Rule” was upheld, and it changed how House business was done when it came to determining a quorum. From then on, a quorum has been determined by the roll call of those present and not based on those voting, making it much more difficult for the minority to block legislative actions.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com
