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Can Congress Pass Laws Without Majority Present?
How Many Congressmen Can Fit into a Phone Booth? And How Many Does
It Take To Change a Lightbulb? More Importantly, How Many Does It Take
To Pass a Law? If You Don't Know the Answer You Could Die From It.

By Mary W Maxwell, PhD, LLB
On September 29, 2011, in an article entitled "Nearly Empty Chamber Approves Stop-Gap Spending Bill," Associated Press reporter Andrew Taylor wrote that Congress had passed a money bill on a day when almost all Congressmen were away on vacation.
I shall pass over the fact that no elected representative is ever "on vacation." There are no vacations in the legislative branch, although it is correct to say "Congress is not in session," or "Congress has adjourned."
Congress is subject to law. In the Constitution, Article I, section 5 specifies that each House needs a quorum to do business, and that a quorum consists of a majority of each chamber's members. Hence for the Senate to vote on any measure, 51 warm-bodied senators must be present. For the House, the number is "more than half of 435", in other words 218. Can they send in their vote by text message? Please. Have some respect.
The bill, about which Taylor wrote his article, is House Resolution 2017, a "Continuing Appropriations Act." Last June 6, it passed the House, at 6.58pm, with 231 yeas and 188 Nays. (The Roll number is 409 if you care to see how your rep voted.)
Am I such a smarty that I happen to know such things? Hell, no. I got those details from a user-friendly website: Thomas.loc.gov.
Yes, that's Thomas, as in Jefferson; LOC, as in Library of Congress; and gov, as in that nowadays-almost-totally-surreal body that meets in Washington DC, called 'government.'
Naturally, the bill proceeded to the Senate, in June, and there it sat in committee for months. Senator Mary Landrieu 'reported it out' on September 7. It includes Department of Homeland Security Appropriations for such items as a national flood insurance fund (!) and a Radiological Emergency Preparedness Program. (That strikes me as an impossible entity; who can prepare for radiation?)
The next development of the bill was "Senate Amendment 666" [ahem] proposed by Senator Harry Reid. Oddly, it has to do with providing care for any Peace Corps volunteers who are sexually assaulted. It "establishes a Sexual Assault Advisory Council" with 8 members to be appointed by the President. (Just between us, I think that is overdoing it. And one wonders: will the Peace Corps recruits be told of the existence of that amazing body before they go overseas?)
Reid's amendment (S.AMDT.666) was "agreed to in Senate by unanimous consent." The next entry says: "9/26/2011: Passed Senate with an amendment and an amendment to the Title by Voice Vote." That was last Monday. Was the chamber nearly empty? I don't know. But I do know, because I can read the English language, that if 51 senators were not present, the Senate DID NOT PASS this bill. So says the mighty Constitution.
Subsequently, according to Thomas, our electronic friend:
9/27/2011: Message on Senate action sent to the House.
9/29/2011 11:05am: Mr. Culberson asked unanimous consent that the House agree to the Senate amendments.
9/29/2011 11:05am: On motion that the House agree to the Senate amendments Agreed to without objection.
The news reporter says only 3 representatives were present. The Constitution does not mention any exceptions that alter the force of Article I, section 5. So, even for the passing of amendments, a quorum to do business is required. Therefore I claim that, on the 29th of September, the House did not pass the amended version if fewer than 218 representatives were present.
I don't like taking the information about how many reps were present from a media source. Is it true that "everybody had gone on vacation?" Would some student please find out? I do know, though, from a reliable source, the Congressional Record, that Senator Jeff Sessions recorded a complaint about the practice of passing legislation in the illegal manner I have described, in regard to Senate Resolution 85 concerning the plan to attack Libya.
He said "I am also not happy at the way some resolution was passed here that seemed to have authorized force in some way that nobody I know of in the Senate was aware that it was in the resolution when it passed" (157 Cong. Rec. S2010, daily ed. March 31, 2011).
Sessions was referring to the way some little gremlin snuck a phrase about establishing a 'no-fly- zone,' into the Libya resolution.
Why did Senator Sessions go only so far as to say he was "not happy" about it? Why didn't he tell the Congress they were acting illegally? If Congress wouldn't listen to him, does he not have the automatic right to write it into the Congressional Record, naming names of the miscreants? Can't he send an article to rense.com, as I am doing, to make known his plight?
I would not have heard about the no-fly episode but for the remarks made by Professor Louis Fisher, in a separate hearing about the abominable bombing of Libya. Fisher cares like mad about the Constitution, particularly its restrictions on 'the war power'. In that regard, Fisher is carrying on the work of "the late Professor Harold Koh." I do not mean Koh is deceased. His body is not deceased but there is cause to worry about his mind.
When Koh was dean of Yale, he was an unusually clear thinker and a wonderful American patriot. Something happened. He is now an official of the US State Department who would never say the things he himself used to say about the war power! Pardon me for being fascinated by this phenomenon. It is my best guess that someone has directly converted Koh's intellect. Not by bribery, not by threats, just directly.
A milder form of this conversion seems to have happened across the board among intellectuals. If anyone knows how it is done, would they please tell me? Surely it's not the fluoride in the water.
Or maybe a better matter to investigate would be: How do a few persons, such as Louis Fisher, escape it? I am curious as to how I myself escaped it. I haven't owned a TV set in many years; could that be a clue?
If you have escaped it, I mean if you still have your marbles and can care about our Constitution, please work hard at these vital matters. Please tell everybody that the Constitution clearly says a quorum is needed. Below, I will print Article I, section 5 in its entirety. You may ask, Is that really its 'entirety'? Yes. Because none of the 27 amendments to the Constitution says anything to alter it.
Oh, and are such amendments 'the final word'? No. A decision by the US Supreme Court can modify the Constitution. And how can a layperson find out if there has ever been a SCOTUS decision on Section 5 of Article I? Easy. You waltz down to your local library to sit at their computer (have a computer at home? good! saves the waltzing) and type "US Constitution, Annotated" into the search engine.
Up will pop several versions; I feel confident about the one carried by Cornell University. You will be informed that there was a case in which the court upheld Congress' practice of using the number of members PRESENT, rather than the number CASTING A VOTE, to count the quorum. I see that decision as according well with the intention of the Framers who, in 1787, wanted to guard against some naughty minority sneaking in a piece of legislation, like the Libyan no-fly thing.
In any event, since the Cornell website mentions only that one case, we can be assured there has never been a case allowing fewer than 51 senators to 'do business.'
And now here is the down-low, as promised, straight from the parchment to you:
Article I, Section. 5. "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. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."
Perhaps most of the older folks have ceased to give a damn. But you young'uns had better care. Are you in high school? You could suggest to the teacher, or have your parent suggest to the teacher, that every Wednesday morning the class look up the previous day's Congressional work, at Thomas.loc.gov, and see if anything lawless has transpired.
A lawless government. Think of the consequences of that! Trust me, you will not be able to survive it.
My advice: start carrying a big stick (i.e. the Constitution).
Mary W Maxwell, PhD, LLB, can be reached at her website ProsecutionForTreason.com. She wants to hear from persons under age 30 who have the audacity to say that governmental assaults on our Constitution amount to treason. Or, contrarily, persons who have the audacity to say that governmental assaults on our Constitution are hunky-dory. Either way, anybody with a jot of AUDACITY!!!
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