The United States Constitution Explained: Article I - The Legislature: Part 5 - Keep It Classy!
Updated: Dec 1, 2020
Now that we have a House of Representatives, a Senate and know how they are elected, we need to figure out how they keep them honest and keep them working for us. Section 5, as a whole, outlines how the Houses of Congress regulate their own member's actions and each other's attendance.
Section 5 – Clause One
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.
To begin this section, they explicitly gave Congress not only the power but the responsibility to be the Judge of its own elections. This gives them alone the ability to subpoena witnesses and evidence to investigate claims of fraud and whether or not the elected candidates meet the age, citizenship, and location requirements provided in Sections 2 and 3.
Second, they state that each house can conduct business when a majority of its members are present. They also give a smaller number to compel absent members' attendance and pass rules to determine penalties for people who do not show.
The second part of this clause may seem small and really procedural, but it holds significant value. For a group of men so concerned with representation (equal or proportional depending on the house), you would think that they want all members present for any work to get done.
While this is a great ideal, it is not practicable. Before we begin to talk about the political reasons why only a majority needs to be present, let's look at the human reasons. Death, travel time, family emergency, or even resignation can leave openings, and these take time to resolve either by the politician themselves or by the state legislature. Past the human impacts, there are also several political reasons why this idea of a quorum is essential. Let's say that a particular bill has 99 percent approval in the Senate, and only one Senator is holding out on voting yes. If all members were required to be present to vote, that bill would never get voted on because that one member could just say I'm not coming in. Let's even take a less extreme example. Let's say a bill has fifty-one percent of the House of Representatives agreeing, so just barely passing. If even a three-fourths or two-thirds majority needed to be present to allow a vote, the bill would never get voted on because the forty-nine percent could make the house unable to function by just not showing up.
After hearing all of this, you might ask, "Well, why even have a quorum at all? Just either show up and vote or miss out?"
This goes back to the human reasons we spoke about at first. Let's say a majority of one house could not get to the capitol building in DC because a major snowstorm shut down all the roads into town. We wouldn't want the few people who were there deciding everything, would we? This is why the majority quorum was instituted. That way, as long as most of the body was there, business can continue. In most cases, out of respect, they still wait for a vast majority, but that is a niceity, not a requirement.
Lastly, before we move on with this section, the Framers wanted to limit the power of a majority to walk out and not allow a vote to happen instead of having to go on the record and vote no. Even if it would not change the outcome of a vote and it was just for appearance's sake, they needed a way to ensure that representatives and senators did their job and voted. For this reason, Congress was given the power to make rules to compel attendance at certain times and to apply whatever penalties were necessary to do so.
Section 5 – Clause Two
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.
The first part of this clause is to give the congress powers to pass rules to make its sessions orderly—basically, things like taking speaking time away from those who are not contributing to a positive discourse. The second part is really interesting. It gives Congress the power to expel a member without impeaching them, provided that two-thirds agree. This clause has been considered in several instances but has not been used since 1862 in the Senate and only twice since then in the House. From my brief research, it can be determined that the two times the House has expelled someone since 1862 could have been better handled by impeachment. However, I believe they wanted the criminal court to address those trials. In each of the last two times this clause was invoked in the Senate, it was to remove Senators from southern States during the Civil War.
On our first episode of the Publius Podcast, Matt talks at length about the founding fathers' treason against Britain and what would have happened to them had we lost the Revolutionary war. Here at March Forth, treason is not a word we take lightly, and one of the reasons we started this blog was to combat treasonous or treason-adjacent statements made in the media and on the internet today. I say this because I want to make our stance clear as we work through these removals. The initial call to action was for the House to impeach these Senators and Representatives and the Senate to try them. Several Senators objected, arguing that they should not be impeached because they did not necessarily break the law of their own free will; they were doing their job and following their States' wishes. Those who supported impeachment believed that by not working against their States to bring them back into the Union, they were a part of the ongoing conspiracy against the American government and, therefore, guilty of treason and should be impeached. In the end, the parties agreed on expulsion because it did not come with the same formalities like the need for due process or penalties like the inability to hold federal office in the future that came with an impeachment trial but still succeeded in the goal of removing them from the caucus.
As for the treason penalties, don't worry. They didn't get off scot-free. The inability to serve in government was later applied with the ratification of the 14th amendment, but we will talk more about that when we get there.
Section 5 – Clause Three
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.
It is important to remember that Congress members and other Elected offices are public servants there to vote for the interests of those they represent. Given that, it is quintessential to have a journal to know which motions and bills were voted on. This way, Congress members can be held accountable to their citizens. Obviously this has to be limited, not all matters can be on the public record, especially those involving national security or foreign intelligence. If the American people knew all of them, so too would our enemies. To fully hold each other accountable and for the citizens to hold those who represent them accountable, a low bar was given for when yeas and nays should be recorded. This way, a small minority who may have lost the vote on a particular issue can have the receipts to show their constituents that they have represented them well.
Section 5 – Clause Four
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.
As we talked about above, we know that absence is a powerful way to control how votes happen on particular bills, and the Framers wanted to mitigate this risk. As we will discuss in Section 7, both Houses of Congress must pass each bill for it to become a law. While Clause 1 of this Section gives the individual houses the power to compel their members, Clause 4 provides each House with the ability to force the other House to be in attendance during a session so they can vote on an issue and not hold the Legislature hostage.
In our next post, we will continue on with Article I, Section 6. Please remember to follow us on Instagram and Facebook @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 100 followers on our Instagram or Facebook page, we will pick one lucky follower to give away a $25 Amazon gift card! BIG NEWS ALERT: March Forth will be producing a podcast! Beginning this month, our founder, editor, and lead writer Matt Loft will be hosting The Publius Podcast. The podcast's goal is to go more in-depth than we can in these posts in a way that will hopefully be more engaging and easier for our audience to learn from. Stay tuned to our Instagram and Facebook pages for updates on when and where you can find the podcast!