Introduction

The offices of the resident commissioner from Puerto Rico and the delegates to the House of Representatives from American Samoa, the District of Columbia, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands are created by statute, not by the Constitution. Because they represent territories and associated jurisdictions, not states, they do not possess the same parliamentary rights as Members do. This report examines the parliamentary rights of the delegates and the resident commissioner in legislative committee, in the House, and in the Committee of the Whole House on the State of the Union.

In Legislative Committee

Under clause 3 of Rule III of the rules of the House of Representatives, as adopted in the 117^th Congress,¹ the delegates and the resident commissioner are elected to serve on standing committees in the same manner as Representatives and have the same parliamentary powers and privileges as Representatives there, including the right to

• question witnesses,
• participate in debate and vote,
• offer amendments and motions,
• raise points of order,
• include additional views in committee reports,
• accrue seniority, and
• chair committees and subcommittees.

Rule III also authorizes the Speaker of the House to appoint delegates and the resident commissioner to conference committees as well as to select and joint committees.

In the House

The delegates and the resident commissioner may not vote on the House floor or preside over the House.² Although they take an oath to uphold the Constitution, they are not included on the Clerk's roll of Members-elect and may not vote for Speaker. They may not file or sign discharge petitions. They may, however

• sponsor and cosponsor legislation,
• participate in debate—including managing time,
• offer any motion that a Representative may make except the motion to reconsider,³
• raise points of order,
• raise questions of personal privilege,
• call a Member to order,
• appeal rulings of the chair,
• file reports for committees,
• object to the consideration of a bill, and
• move impeachment proceedings.

In Committee of the Whole House on the State of the Union

Under the rules of the 117^th Congress (2021-2022), the delegates and the resident commissioner may vote in, and preside over, the Committee of the Whole House on the State of the Union (Committee of the Whole).⁴ Rules III and XVIII, as adopted in the 117^th Congress, mirror rules in force during the 103^rd (1993-1994), 110^th (2007-2008), 111^th (2009-2010), and 116^th Congresses (2019-2020). Under these provisions, when the House is sitting as the Committee of the Whole, the delegates and resident commissioner have the same ability to vote as Representatives do, although the vote may be subject to immediate reconsideration in the House when their recorded votes have been "decisive" in the committee.⁵ These House rules also authorize the Speaker to appoint a delegate or the resident commissioner to preside as chair of the Committee of the Whole.

Provisions permitting the delegates and the resident commissioner to vote in the Committee of the Whole were first adopted in the 103^rd Congress (1993-1994). These provisions were stricken from the rules as adopted in the 104^th Congress (1995-1996) and remained out of effect until readopted in the 110^th Congress. They were again removed from House rules at the beginning of the 112^th Congress (2011-2012).⁶ The 116^th Congress (2019-2020) reinstated the delegate voting provisions, and they are currently in force in the 117^th Congress (2021-2022).

At the time of the adoption of the original 1993 delegate voting rule, then-Minority Leader Robert H. Michel and 12 other Representatives filed suit against the Clerk of the House and the territorial delegates seeking a declaration that the rule was unconstitutional. A federal district court judge found the rule constitutional, and the judgment was upheld by the U.S. Court of Appeals, District of Columbia Circuit, based on the inclusion of the mechanism for automatic reconsideration of votes in the House.⁷

The votes of the delegates and the resident commissioner were decisive—and thus subject to automatic revote by the House—on three occasions in the 103^rd Congress.⁸ There were no instances identified in the 110^th Congress in which the votes of the delegates and the resident commissioner were decisive. In the 111^th Congress, the votes of the delegates were decisive—and subject to an automatic revote—on one occasion.⁹ No such instances occurred in the 116^th Congress or during the first session of the 117^th Congress.¹⁰

The rule governing voting in the Committee of the Whole by delegates and the resident commissioner is not interpreted to mean that any recorded vote with a difference of six votes or fewer is subject to automatic reconsideration. In determining whether the votes of the delegates and the resident commissioner were decisive, the chair follows a "but for" test—namely, would the result of a vote have been different if the delegates and the commissioner had not voted?¹¹ If the votes of the delegates and resident commissioner on a question are determined to be decisive by this standard, the committee automatically rises and the Speaker puts the question to a vote. The vote is first put by voice, and any Representative may, with a sufficient second, obtain a record vote. Once the final result of the vote is announced, the Committee of the Whole automatically resumes its sitting.¹²