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42–409 2008

VOTING IN THE HOUSE OF REPRESENTATIVES— 

RULES, PROCEDURES, PRECEDENTS, CUSTOMS 

AND PRACTICE 

HEARING 

BEFORE THE

SELECT COMMITTEE TO INVESTIGATE 

THE VOTING 

IRREGULARITIES OF AUGUST 2, 2007 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

OCTOBER 25, 2007 

WASHINGTON, DC 

( 


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SELECT COMMITTEE TO INVESTIGATE THE VOTING IRREGULARITIES OF 

AUGUST 2, 2007 

WILLIAM D. DELAHUNT, Massachussetts, Chairman 

ARTUR DAVIS, Alabama 

STEPHANIE HERSETH SANDLIN, South 

Dakota 

MIKE PENCE, Indiana, Ranking Member 

STEVEN C. LATOURETTE, Ohio 

KENNY C. HULSHOF, Missouri 


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C O N T E N T S 

Page 

I. Opening Statements: 

1. Delahunt, Hon. William, Chairman ............................................................ 1 

2. Pence, Hon. Mike, Ranking Member .......................................................... 2 

II. Appendix: 

Speaker’s Opening Day Announcement .......................................................... 37 

Letter of Resignation, Charlie Johnson .......................................................... 40 


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VOTING IN THE HOUSE OF REPRESENTATIVES—RULES, PROCEDURES, PRECEDENTS, 

CUSTOMS AND PRACTICE 

THURSDAY, OCTOBER 25, 2007 

HOUSE OF REPRESENTATIVES,

SELECT COMMITTEE TO INVESTIGATE

THE VOTING IRREGULARITIES OF

AUGUST 2, 2007, 

Washington, D.C. 

The committee met, pursuant to call, at 8:30 a.m., in Room H–

313, The Capitol, Hon. William D. Delahunt [Chairman of the committee] presiding. 

Present: Representatives Delahunt, Davis, Herseth-Sandlin, 

Pence, LaTourette, and Hulshof. 

The CHAIRMAN. The hearing of the select committee will come to 

order. The subject of this hearing today is Voting in the House of 

Representatives—Rules, Procedures, Precedents and Customs. 

Without objection, all Members’ opening statements will be made 

part of the record. 

[The information follows:] 

The CHAIRMAN. Let me begin with a brief statement. First, let 

me say that I think that today’s hearing is an important hearing. 

One of the main things that I was struck by as I began delving into 

the substantive aspects of this inquiry, which is mentioned in the 

select committee’s interim report and includes the duties and discretion of the offices of the House and the presiding officer related 

to voting and the duration of a vote, is that the rules of the House, 

the House standing rules, that is, that govern the conduct on an 

electronic vote only provide illumination on certain aspects of these 

subjects. 

I had previously been unaware of which electronic votes are governed by precedents and customs that I daresay a few of us were 

aware of and understand. Clause 2(a) of Rule 20 states, and I am 

quoting, ‘‘Except as otherwise permitted under Clause 8 or 9 of this 

rule or under Clause 6 of Rule 28—or rather 18, the minimum time 

for our record vote, a quorum call by electronic voting, shall be 15 

minutes.’’ Clause 1 of Rule 20 states that on the tie vote, a question 

fails. That seems to be it. 

So much of what occurs on the floor of the House is governed by 

precedents, customs and practice. Therefore, much of what dictates 

the sequence of events that comprise a floor vote is not black letter 

law, and it would appear that some of it is not even memorialized 

in writing. 


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So that is why today is a particularly important hearing, the purpose of which is to inform the members of the committee, and I 

daresay our colleagues outside of this committee, as well as the 

American people, of the custom and practice, precedents and influence, and in many ways, goes to the heart of this institution. And 

I can’t think of anyone more prepared to serve as witnesses at this 

hearing than the two individuals who sit before us and who I will 

introduce momentarily. 

First let me say that I am confident that the information that 

will emerge from this hearing will be integral in laying the foundation for the factual inquiry with which we are charged. 

The subject of this hearing—institutional models—as with the 

subjects of the committee’s previous hearing, is not within the immediate expertise of any members, and is therefore critical for us 

to understand in fulfilling our charge. However, I am also inquisitive as to how we may inform our other responsibility, which is the 

recommendation of changes to the House rules. 

One of the most valuable things I think we will take away from 

this experience is the understanding of the most integral, innermost operations of the House of Representatives, the institution, if 

you will, because the greater our understanding of not only the 

meaning of the rules, customs and practice, but also the reason and 

history behind them, and our determination that their operation 

and purpose are generally fair and logical if we so determine, the 

greater our commitment to preserving their integrity. 

Let me call on Mr. Pence for his opening statement. 

Mr. HULSHOF. Mr. Chairman before you yield to Mr. Pence, you 

might want to supplement the record in that we have had a meeting of the select committee that wasn’t public when we met on the 

floor through the walkthrough. Perhaps if you could give a brief 

recitation in that the press is not allowed to accompany us on the 

floor, that we actually saw for ourselves the process. 

The CHAIRMAN. That is a very good point, Mr. Hulshof. We did, 

I think it was a week ago, have an opportunity to actually observe 

and participate in a vote. Not a real vote obviously, but a vote that 

was, I think, most illuminating, which ran through the various sequences that the Clerk’s office and a Parliamentarian explained in 

some great detail. I think we all left that floor having a greater appreciation for the coordination that is required between the various 

individuals that conduct, if you will, the operations that make the 

House of Representatives function as a democratic institution. 

I see the Clerk of the House, Lorraine Miller, has joined us. And 

I want to commend and extend our collective appreciation for that 

particular effort. It really was illuminating. And again, I would say 

I think we all left with a better appreciation of the complexity and 

the coordination that is required. And now Mr. Pence. 

Mr. PENCE. Thank you, Chairman. Thank you for calling this 

third hearing. I would agree with you that what we are about in 

this third hearing, as we have been about in the first two is institutional knowledge. And I am grateful for the manner with which 

this committee has cooperated thus far and hope and trust that we 

will remain cordial and collegial as we move out of this background 

institutional knowledge phase into upcoming hearings that will be 


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exploring the facts and circumstances around the vote of August 2, 

2007. 

As you said, this is the third in a series of educational hearings 

about the voting process. We have heard from the Clerk. As you 

just mentioned, we have been on the House floor. We received a 

briefing on the voting process. And today our hearing, I expect, will 

delve deeply into the rules, procedures, precedents, customs and 

practices associated with voting in the House. 

Our witnesses are two individuals with extraordinary experience 

and knowledge. And I might add extraordinary reputations for integrity in this institution. I would love to welcome them to the select committee and thank them for their long careers of service to 

the United States and to this institution. I will leave it to the Chair 

to introduce our two witnesses. But when I think about the cumulative wake of the years of experience assembled at this table, I am 

encouraged that we will leave this hearing better informed and 

with a much greater appreciation for the proper workings of the 

House of Representatives in the tallying of the vote than we have 

even up to this point. 

Let me say again, I appreciate the collegial manner, particularly 

the chairman and my Democratic colleagues who have demonstrated to us on the Republican side we have serious business to 

do here, and I am grateful that we are taking it seriously. Because 

there are some tough questions at hand. The reality is even in this 

educational background phase, questions have been raised that 

need to be answered. 

Today, I expect more questions will come to our minds as we 

hear from these experts. But I remain confident that we are building a good foundation of knowledge on which we will be able to 

draw substantive conclusions about the events of the night of August 2nd. And finding answers is really what we are here to do. 

Our select committee has been tasked with two jobs, getting to 

the bottom of what happened on the night of August 2, 2007 during 

the roll call vote 814, and making recommendations to the House 

regarding the protection of members voting franchise and the 

House voting system. This is a solemn duty to investigate the irregularities of August 2nd and we approach it in that manner. The integrity of the House of Representatives is completely dependent on 

the integrity of the vote that takes place on the floor of the House. 

Every American is entitled to have a voice in the people’s House 

and to know that their representative’s vote counts. With our work 

today and over the past few weeks, I believe we are taking proper 

foundational steps to answer questions we have about that night 

and to develop the kind of recommendations that will ensure the 

fundamental integrity of this institution. Thank you, Mr. Chairman, for calling this hearing and thank our witnesses and look forward to the testimony. 

The CHAIRMAN. Thank you, Mr. Pence, and let me proceed by introducing our witnesses. And as you indicated, these are individuals of great integrity and erudition. Their reputations are well 

known to all of us. Mark O’Sullivan received his bachelor of arts 

at the University of Massachusetts——

Mr. LATOURETTE. Everybody makes a mistake. 


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The CHAIRMAN [continuing]. In 1975. Mark is a member of the 

Red Sox nation. He has served the House of Representatives since 

1977 in the House Post Office, Office of the Door Keeper and Office 

of the Clerk and Legislative Operations. In 1978, Mark was appointed assistant Tally Clerk and served in this position until 1983. 

From 1983 to 1987 Mr. O’Sullivan served as assistant general 

clerk. He returned to the position of Tally Clerk until January of 

2003 when he was appointed Chief Tally Clerk, a position which 

he currently serves with great respect from all members of the 

House. 

And again, alluding back to the hearing that was conducted on 

the floor of the House, I certainly, and I think I speak for most of 

the members, have now a much more fully—well, I have a much 

greater appreciation for the function of the Tally Clerk. In this position, he is responsible for the electronic voting system which 

records members’ votes on the House floor and for authorizing the 

release of roll call votes to the Clerk’s Web site and the Government Printing Office for printing in the Congressional Record. He 

supervises a staff of four assistant tally/floor action reporting system clerks. He has served under six House Speakers, seven House 

Clerks, and three House Parliamentarians. 

We are also fortunate to have one of those distinguished Parliamentarians here with us today, Charlie Johnson, who received his 

bachelor of arts from Amherst College, also in Massachusetts, 

which is obviously part of the Red Sox nation, and his Juris Doctor 

from the University of Virginia Law School in 1963. He is admitted 

to practice in the bars of the District of Columbia and the United 

States Supreme Court. He served in the Army National Guard 

Army Reserve from 1963 to 1966. And the Navy JAG Reserve Commission from 1967 to 1971. He was appointed to the Office of the 

Parliamentarian on the House of Representatives in May of 1964. 

He served as assistant Parliamentarian from 1964 to 1974. From 

1974 to 1994 he served as deputy Parliamentarian. He then served 

as Parliamentarian of the House from September 16, 1994 through 

May 20, 2004—40 years, 40 years to the day after his first appointment. 

He has served as an adjunct professor on congressional procedure, political leadership and recent congressional history at the 

University of Virginia Law School, and given lectures and seminars 

at numerous institutions, including Catholic University Law 

School, Georgetown University Law School, and his alma mater, 

Amherst College. He has been the editor and author of numerous 

publications. He was the editor of House Rules Manual of the 

104th 105th, 106th, 107th and 108th Congresses. He co-edited 

House Practice, the second edition. He is currently consulting to 

the Parliamentarian on writing of House precedents. He is also the 

co-author with Sir William McKay, recently retired clerk of the 

House of Commons, of an upcoming book on Parliament and Congress. And lastly, he has been a batting practice pitcher with the 

L.A. Dodgers and the Pittsburgh Pirates for the past 5 years. Congratulations. 

Mr. DAVIS. The Atlanta Braves could use a middle reliever. 

Mr. LATOURETTE. Mr. Chairman, before the witness, could I say 

something about Mr. Johnson. Because of part of this committee’s 


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assignment is to serve as an educational tool for the Members, I 

just wanted to relay an experience that I had when I was elected 

in 1994. I had never been in the legislature and I got here and 

some of the old bulls, Ralphs, to then Speaker Gingrich, asked, 

‘why are they keeping the Democrats’ Parliamentarian, Mr. Johnson?’ And they said, well, we are in the majority now, we shouldn’t 

be keeping the Democrats’ Parliamentarian. I think your introduction of Mr. Johnson is right on the money. Over the 12 years that 

I had the pleasure to present from time to time, he wasn’t the 

Democrats’ Parliamentarian; he was the Parliamentarian of the 

House. And his counsel was why I thought and Mr. Davis thought 

he was such a valued witness. What he has to say about rules, 

practices and precedents I think is unimpeachable and he is going 

to be fair. 

And I would also like to tip my hat to you, Mr. Chairman, and 

I see that you have sought counsel of one of his former assistants, 

Muftiah McCartin; I had the pleasure of working with her for 12 

years. And I make the same statement about her and what she 

said about rules, practices and procedures and I believe and I trust 

that, so I look forward to this hearing. Thank you. 

The CHAIRMAN. Thank you, Mr. LaTourette. Let me just echo 

that the people that are before us, the people that are sitting in 

this audience who are part of the operations of this House and the 

people that are behind us, while they might be appointed by Democrats or Republicans, I think it is important for the American people to understand that they are Institutionalists and they care 

about this institution. I think all of us are aware of that because 

in many cases, we have personal relationships with these individuals. And they carry out their duties in a nonpartisan way. 

And I know that the testimony we will elicit from them will be 

fair and accurate and will be made in a way that hopefully will be 

reflected enough on the party which will enhance the confidence of 

the American people and the integrity of this institution. We have 

said that differently in different ways, all of us, but that is why we 

are here. I know that neither one of our witnesses have a written 

statement. 

STATEMENTS OF CHARLES E. JOHNSON, FORMER PARLIAMENTARIAN OF THE HOUSE OF REPRESENTATIVES; AND 

MARK O’SULLIVAN, CHIEF TALLY CLERK OF THE HOUSE OF 

REPRESENTATIVES 

The CHAIRMAN. So why don’t we just simply go to questions first. 

And let me pose a question to Mr. Johnson. Charlie, in Chapter 50, 

Section 2 of your book entitled House Practice; A Guide to Rules, 

Precedents and Procedures of the House, there is this statement. 

Parliamentary law, a term that encompasses both formal rules and 

usages has come to be recognized as binding on the assembly and 

its Members. The formal rules, which are our standing rules, are 

readily available in two different House publications. The Chair’s 

interpretation of those standing rules has been compiled. We know 

where we can go and get it, thanks to the dedication of the Office 

of the Parliamentarian over an extensive period of time, many 

years, to create a body of precedent that gives us some clarity and 

predictability in the application of the standing rules themselves. 


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1Subsequently Clarence Cannon, who himself became a Member, published Volumes 5–8; covering the period 1907–1936. 

But when it comes to the usages or customs of the House that govern procedure they are not completely captioned, if you will, in the 

compilation of precedents or publications setting forth the standard 

rules. As stated by Mr. Hinds, the Parliamentarian, in the early 

1990s, these customs are the unwritten law. That is his term, unwritten law. There are quotes around ‘‘unwritten.’’ And we hope to 

glean some of those usages and customs of the House today. 

But before we embark on that training, can you please explain 

to the committee the relative importance of usage and custom. 

When does a custom or usage become so well established that it is 

elevated to be a binding procedural law? Is it as binding as a wellsettled rule of the Chair, a standing rule, if you will? And would 

your answer be different if the Chair had occasion to opine on a 

usage or custom? Can you discuss the providence of custom and 

usage in the Morton House where the majority of Members have 

only been here since 1999? I myself came here in January 1997. 

How does the House go about changing a usage or custom? I mean, 

can the Chair, by deviating from a usage or custom, establish a 

new precedent? Or how do we go about changing usage and custom? Mr. Johnson. 

Mr. JOHNSON. Thank you, Mr. Chairman. I think you started this 

inquiry off correctly about practice as a general proposition. Perhaps it is not totally accurate to say that all usage and custom is 

not written. Because just in the last few days, as I have tried to 

collect my thoughts in preparation for this hearing, I went back 

into Hinds’ and Cannon’s precedents beginning where you just did 

with our own House practice book, which has a three-page chapter 

on precedent. 

And the first citation in that chapter, which you cited, brings you 

to Hinds’ precedents, Volume I, the preface. Now, what are Hinds’

and Cannon’s precedents? They are the compilations respectively 

from 1789 until 1907, when Asher Hinds, during his time as thenclerk to the Speaker’s table, (he didn’t have the title of Parliamentarian, and then a Member of Congress, took Speaker Thomas 

Reed’s seat from Maine in the late 1890s. But he had it within him, 

with whatever staff he could summon, to publish those first five 

volumes. And they ‘‘speak volumes.’’ 1

You read briefly the unwritten law commentary in his preface. 

But let me put this in a little more context, because custom and 

usage is contextual. The people who have immediate access to it 

are perhaps people like myself and Members and staff on both 

sides. I see right here today distinguished staff on both sides who 

have accessed and are interested in looking at precedent, at black 

letter rule, precedent, custom, usage, tradition. But there is more 

available than meets the eye. And that is part of what the House 

realized in 1970 by enacting the Reorganization Act of 1970. The 

law requires the Parliamentarian, (who, by law, is appointed by the 

Speaker as a nonpartisan attorney, together with all the assistant 

Parliamentarians as nonpartisan attorneys) to compile the procedural precedents of the House. At that time they had not been published since Clarence Cannon finished his compilation through 


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1936. They had been completed but had not been fully published 

as precedent. There were citations in the House Manual and in an 

abbreviated book called Cannon’s Procedure. And then with cryptic 

citations. 

Just last week, you received once again your leather-bound rule 

books, the small print which comprises up to date citations to 

precedent for the most part, rulings of the presiding officers, which 

perhaps have a little greater standing because they are potentially 

subject to the will of the House through appeal. 

Now, when I retired in May, on May 20th of 2004, I submitted 

a two-page resignation letter. That letter discussed the importance 

of precedent and honored the Members and staff I had been privileged to help advise. And it said that appeals from rulings had traditionally not been taken in the House because the Chair’s competence and fairness has been honored as a tradition and custom. 

I still think that is true and it has to be true. But as you know, 

all six of you know, there have been a proliferation of appeals from 

rulings, perhaps not so much to have a vote of the House on the 

propriety of the Chair’s ruling, which after all is all that an appeal 

is about, but rather from time to time to represent the issue as a 

vote on the underlying merits of the proposition, which I think is 

wrong as far as using appeals. 

But let us face it, it has happened and it will continue to happen. 

But when those rulings are made by the Speaker, and nine out of 

10 are not appealed, they are then incorporated in the House Manual every 2 years. They then go into the House Practice book. The 

second edition has been out since 2003. My predecessor, Bill 

Brown, and I put it together with our staff. But then there are traditions and customs. Let me just read this paragraph from which 

you quoted. ‘‘The value,’’ and this is out of Asher Hinds’ introduction, ‘‘the value of precedents in guiding the action of a legislative 

body has been demonstrated by the experience of the House of Representatives for too many years to justify any arguments in their 

favor now. We have no other means of building up parliamentary 

law, either in the mother country or here, said a great lawyer who 

was also an experienced legislator.’’ And while the quote, unfortunately, is of a Senator, so perhaps you can minimize the precedential value, the Senator was speaking of precedent value in both 

Houses. 

Except by instances as they arise and treatment of them and disposition of the law and of the good reasons that should govern 

these considerations. And the great legislator who had served a 

lifetime in the House of Representatives and the Senate concluded 

that, as you quoted from, and this is another Senator, John Sherman in the 44th Congress, concluded that, ‘‘The great body of the 

rules of all parliamentary bodies are unwritten law. They spring up 

by precedent and custom. These precedents and customs are this 

day the chief law of both Houses of Congress.’’ So I think that really does properly characterize the value of precedent and practice. 

The question is——

The CHAIRMAN. If I can interrupt, do you agree with that statement? 

Mr. JOHNSON. Yes. But I don’t agree that they are not necessarily written. They are published often, not always but often in 


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2Where they are not written, they are based on trust in the Parliamentarian’s advice articulated by that office or through the Chair. 

the precedents in footnotes, in the House Practice book as parliamentarian’s notes, not as dispositive precedent but as guides. And 

the reason they have value is because they are prepared by an office which by law and unbroken custom has the responsibility as 

nonpartisan attorneys of preparing them, publishing them and advising all Members based on them. That was the law in 1970. Ongoing publication.2

The CHAIRMAN. If I can again interrupt. But is there a discrete 

compilation or a compendium that is readily available to Members? 

Mr. JOHNSON. It is. 

The CHAIRMAN. In other words—let me rephrase it. For someone 

who is not particularly conversant with parliamentary procedure, 

and that depends on the individual member, but I dare say that 

there are many Members who fit that particular description, but if, 

on occasion, they wanted to access without going to the parliamentarian’s office, how would you go about it, how would you locate the 

precedent on a particular issue that you were concerned about? 

Mr. JOHNSON. Well, all the precedents from Hinds, Cannon, 

Deschler, Deschler and Brown are on-line. Plus there are 11 volumes of Hinds’ and Cannon’s precedents from 1789 through 1936. 

Then there are now 16 volumes of Deschler and Deschler-Brown. 

Lew Deschler was Parliamentarian for 46 years from 1928 to 1974. 

He hired me. And obviously being the Parliamentarian for 46 years 

gave him some stature. He also for most of his time was not required to permit uninhibited access to his scrapbooks and precedents as he compiled them. The law came along in 1970 and required publication and total public access, which was right. But 

they are in print and online. The question is how many people, 

number one, know they are there and know how to access them 

and sometimes seek help in accessing them? Which again, the parliamentarian’s office is available to do for all Members on a confidential basis in an attorney-client relationship if necessary. 

That is not to say Members and staff can’t do their own research, 

and they often do. They are well advised, I think, to seek their interpretation of the results of that research from the parliamentarian’s office. There are sources that clearly have expertise, both on 

committee staff, CRS, where help can also be obtained. A couple of 

days ago I started looking for a precedent in this general area of 

voting. Because I knew since I was here in 1964, the voting system 

from 1964 through 1973 was the roll call. That was how the yeas 

and nays were recorded; it was done on tally sheets. This is rather 

fascinating. Because it is the only, that I could find, printed discussion of the role of the clerks in preparing the result. It was an occasion in 1918. And this is recorded in Cannon’s Volume VIII, Section 

3162. 

This is in print. This is usage, but it is also precedent because 

the Chair was called upon to rule on an occasion when a conference 

report was announced as defeated 149 to 150. The next day it became apparent that the clerk’s tally was wrong by one vote and 

that the correct vote was 150 to 149, adopting the conference report, clearly a decisive change. So the issue came up about changVerDate Aug 31 2005 00:06 Aug 29, 2008 Jkt 042409 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 E:\HR\OC\A409.XXX A409

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3 1971–1972 

ing the Journal and, in effect, approving the conference report, 

which the day prior, the Speaker declared to have been rejected. 

Cannon wrote that, ‘‘where an error of the clerk in reporting the 

yeas and nays, the Speaker announces a result, whereby an error 

of the clerk, the Speaker announces a result different from that 

shown by the roll, the status of the question must be determined 

by the vote as actually recorded.’’ And then the House on motion 

amended the Journal of the prior day’s proceeding. 

But let me just read a paragraph. This touches in a general way 

on where the committee, I believe, is headed. The Chair, and this 

is Speaker Champ Clark of Missouri, a distinguished Speaker of 

the House in 1918. The Chair, with the consent of the House, 

would like to make a few remarks about this matter. These are ‘‘remarks.’’ This is not a ruling precisely. Because the House did not 

challenge the amendment of the Journal, because everyone knew 

that the revised tally sheet was a correct one, the Speaker felt it 

necessary to make this comment. This is the first time for a long 

while that this has been done. And perhaps not a dozen men in the 

House ever saw the thing done before. But this is not unprecedented. 

Now, the way the Chair arrives at a yea and nay vote in the 

House is by these tally clerks handing up the figures. Of course, 

the Chair cannot go down there and count the votes. And would 

not know how to do it if he did go down there. They have some system of their own whereby when they get through with the roll, they 

know the number of the yeas and nays and those present. And 

then these clerks at the desk take the tally sheet out and go over 

it, one of them a Democrat, and one of them a Republican. And I 

never heard of anybody that disputed the integrity of either. 

So there is a description which captures until 1973, 184 years of 

practice that two tally clerks process the roll call vote. Whether 

they are patronage, one Democrat and one Republican, I don’t 

think is particularly relevant. The important thing is that the role 

of the tally clerks has traditionally been nonpartisan as Speaker 

Champ Clark has said, which commanded both, a usage or a custom of the House. When the House went to electronic voting in 

1973, that role was never perceived to be changed, the role of the 

Tally Clerk in compiling the result was not considered to be sufficiently different to require a black letter rule on what the ongoing 

role of the tally clerks was to be. The assumption, was that traditional and custom was always, as Speaker Clark said, to be controlling. Yes, sometimes errors occurred, but the Chair was never guided by anything other than the proper role of clerks. That was the 

custom and remains so, I believe. 

Since electronic voting, and I saw it come in, it came in gradually. The first one or two years 3 of getting away from the yeas and 

nays, which took 45 minutes, a system called recorded tellers was 

used. It is still a fallback procedure in the rules, whereby the yeas 

went up the left aisle and nays went up the right aisle and the 

clerks separately read or give them ballot cards tallied with two 

separate sheets the result. That was when the House began to 

allow recorded voting in the Committee of the Whole, number one, 


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which was a major reform in 1970 in the Legislative Reorganization Act. 

Until then, amendments were not roll called in the Committee of 

the Whole. And so defeated amendments were not a matter of 

record since they were not reported to the House. And so the 

House, in its wisdom, decided to allow recorded votes in the Committee of the Whole. They did not have electronic voting, but they 

knew that the call of the yeas and nays was going to take a long 

time on amendments in the Committee on the Whole, especially 

back when there were open rules and you had a number of amendments and amendments to amendments voted on in real-time. 

So they come up with this temporary system, all the while having a contract to find an electronic voting system that worked. But 

in those few years, the tallies were kept separately up each aisle 

and then the numbers were reported by the Members who had 

been appointed tellers by the Speaker or the Chairman of the Committee of the Whole and announced separately the yeas and the 

nays. The names were printed in the Record and the Journal, but 

once electronic voting was used, the tally clerks again at the rostrum were expected and invariably prepared that final result on a 

tally slip. 

I assume that, in your walkthrough the other day you saw that 

process in action. The tally clerk’s role is indispensable. You saw 

the preparation of that tally sheet deriving from the electronic 

mechanism. There was one occasion on June 21 and 22, 1995, and 

it is cited, again this is precedent, in Volume XIV of DeschlerBrown Chapter 30 Sec. 31.18. It involved, as Congressman 

LaTourette may recall, a situation that was very unfortunate 

where the Chair, on an amendment of the Committee of the Whole, 

announced the result from a slip showing 213 to 214. 

Just as two minority Members were approaching down two different aisles, the Chair with the slip in his hand, because the Tally 

Clerk at that moment, when he handed up the slip, was not aware 

that those Members were coming in, and as he handed up the slip, 

two Members appeared and the Chair would not allow those two 

Members to vote, and announced the result as 213 to 214. Well, the 

minority leader, Rep. Gephardt and the minority were quite upset. 

The Committee rose immediately and the House adjourned. 

There was going to be a refusal to proceed the next day until 

that vote was rescinded. 

Speaker, Speaker Gingrich, and Majority Leader Armey readily 

agreed that for the sake of the institution’s getting on with business to entertain unanimous consent in the House, the vote was rescinded and taken again the next day. But that is the only occasion 

of that kind of a problem that I can remember. 

The CHAIRMAN. There wasn’t a select committee as a result of it? 

Mr. JOHNSON. There was no question of privilege, there was no 

select committee as a result. It was worked out by a rescission of 

the action the next day by unanimous consent. 

The CHAIRMAN. I am going to go to my ranking member, my 

friend from Indiana. I also am going to apologize to both witnesses 

and to my colleagues because I have a very significant meeting 

that I am already late for. So I am going to excuse myself and hand 

the gavel over to Mr. Davis. 


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Mr. PENCE. Thank you, Chairman. I have to confess that I have 

not spent very much time in the former parliamentarian’s company. And I haven’t been this challenged since my first day of law 

school. I thank you for your thoughtful and careful presentation of 

the assumptions, the precedents, traditions and customs of the 

House of Representatives about voting. I also want to say I appreciate you helping this committee and anyone that might look into 

this hearing in the future to understand the weight of history on 

this institution, which has been a thus far successful unbroken 

commitment to democracy. 

And again, I feel a little bit of an extra burden about that weight 

of history at this moment by virtue of your testimony. Let me, if 

I can, let me focus on a couple of big picture issues. I am open to 

Rule 20. And Mr. Johnson, I specifically wanted to ask you, Mr. 

O’Sullivan may have an opportunity to jump into this, the express 

language here is, unless the Speaker directs otherwise, the Clerk 

shall conduct a recorded vote quorum call by electronic device in 

such cases, et cetera, et cetera. 

I guess the first and foundational question that I have is what 

does the language, the Clerk shall conduct a record vote mean. And 

I guess by that I want to get specifically to the issue of who controls the floor, who conducts a vote, in the plainest sense of the 

term. It seems to me that in your testimony today, and reflecting 

on historical precedent, that the Tally Clerks play a critical role. 

That, in fact, I was amused at Speaker, is it Champ Clark in your 

testimony to, his comment that the Chair does not go down to 

where the clerks are tallying the vote and they wouldn’t do it and 

wouldn’t know how to do it, to paraphrase the quote. 

And so I guess the first question I have, and then I have a couple 

follow-ups on your testimony Mr. Johnson. Could you just speak in 

the very broadest terms to what that language of the rule means 

and respond very broadly to the question, who controls the floor? 

Who conducts a vote? And by that, I mean is it the Chair? Is it 

the presiding officer? Is it the Parliamentarian? Is it the Clerk or 

his or her designees? Mr. Johnson, maybe you can respond. 

Mr. JOHNSON. You ask who ‘‘controls.’’ Perhaps that is a term 

slightly different from who ‘‘conducts.’’ But the rule obviously and 

properly puts control in the presiding officer—the Speaker—or by 

extension the chairman of the Committee of the Whole by the rule 

that incorporates the Speaker’s responsibilities by reference. So the 

Chair, in his or her nonpartisan capacity conducts the vote, and it 

can’t be any other way. The word ‘‘controls’’ the vote is perhaps a 

little bit more subjective. 

But ultimately, as I hope will be revealed, the conduct and the 

control do and should remain in the Chair. Now, the fallback, and 

you read, Mr. Pence, from what has been the rule since electronic 

voting, that the presumption and the expectation is that the electronic system will be utilized in preference to the alternatives of 

roll call, or the standby recorded tellers, because it is more accurate. The presumed infallibility of the electronic system has been 

consistently documented by rulings that are in the small print just 

below the segment you read, which suggests that unlike old roll 

call votes where Members could come in and ask unanimous consent to change their votes after the vote was announced because 


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they claimed that the Tally Clerk had not heard their response. 

There was the element of human fallibility that allowed the Chair 

to entertain a unanimous consent request by Members, who 

claimed that they were in the Chamber trying to vote and had not 

been heard by the Tally Clerk. 

Under the old roll call system, those votes were allowed to be 

cast as long as they didn’t change the result. Members were allowed to come in the next day and say I am recorded as not 

present, I voted aye, I want the permanent record changed to show 

what the vote was. As you all know now, a Member can come in 

and have his or her statement appear immediately following a vote, 

but not to change the result. The correct interpretation from 

Speaker Albert on forward was that the presumed infallibility of 

the electronic system eliminates that fiction of Members’ claiming 

that they weren’t heard. That has been honored. Again, that is a 

usage. More than that, it is precedent where chairs have relied invariably on the accuracy of the system, coupled with the ability of 

members to verify their votes at any and all voting stations. It is 

that responsibility that the Speakers have imposed on Members. 

Again, not black letter rules that the Speakers have imposed on 

Members to verify their votes. Together that practice has built up 

since 1973 to where the electronic vote is conclusively presumed infallible. There was only one glitch in all the time I can remember. 

It involved an anomaly where Rep. Roybal-Allard’s vote mysteriously appeared in a vote. But she was clearly not there and she 

said so. As you probably learned, you can trace stations and cards 

all the way through a vote. They couldn’t find that her card had 

ever been inserted, yet there was her name shown electronically. 

Bill Thomas and the House Administration Committee performed 

an informal investigation and came back with a technical explanation that the anomaly may have happened electronically for 

some very strange reason, that it would not happen again, and the 

House accepted that. 

Mr. PENCE. Let me interrupt, if I can. You started out by responding that there have been controls and conducts in your statement that obviously the Chair ultimately under our system of government controls. I recognize that. But specifically, who conducts 

the vote under the rule? Who in terms of the history, the tradition, 

the express rules. 

Mr. JOHNSON. Tally Clerks at the direction of the Chair. 

Mr. PENCE. The Tally Clerks at the direction of the Chair conduct the vote? 

Mr. JOHNSON. Yes. 

Mr. PENCE. And they conduct the vote in the manner as we have 

heard in previous hearings and heard you describe? 

Mr. JOHNSON. Yes. 

Mr. PENCE. By the assembling of the vote? You testified that that 

has traditionally been a nonpartisan process. Was there a time in 

history of the institution—I thought you seemed to imply that 

there wasn’t a time where there was a Republican and a Democratic Tally Clerk, is that correct? 

Mr. JOHNSON. I think there have always been two Tally Clerks. 

More recently those old traditional patronage slots are dispersed 

based on merit and not necessarily on patronage. But even so, 


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some of those old patronage Tally Clerks, I remember them, were 

very competent and very dedicated, and you wouldn’t have known 

which was on whose patronage. I guess Mark and Lorraine can 

speak better to the pedigree. But as far as I know, the Tally Clerks 

were and continue to be appointed solely to do business of conducting a vote. 

Mr. PENCE. So it wasn’t on a patronage basis, but you are saying 

as far back as you can see there has always been a tradition of the 

Tally Clerk that conducts the vote operating in a nonpartisan manner. 

Mr. JOHNSON. Absolutely. And I say that not just as a casual observer, but having been the Parliamentarian or Deputy for many 

years, because there is a de facto relationship, talking about conduct, where the Parliamentarian, as the agent of the Chair working 

with the Tally Clerks, a further assurance that the vote is being 

conducted correctly. While the elected Clerks supervise, the Clerks 

of the House supervise the operations of the Tally Clerk’s Office, 

yet there has always been a de facto tacit understanding, never 

contested, but always amicable, that when those Tally Clerks are 

on the rostrum and conducting a vote, they will be taking the advice and working with the parliamentarians because the parliamentarian’s role derives as agent of the Chair. 

Mr. PENCE. Clerk, did you want to speak to that broad question 

about who conducts the vote, what your understanding is as the 

chief Tally Clerk? 

Mr. O’SULLIVAN. Mr. Pence, at the direction of the Chair we 

would initiate a vote. I guess we would use the term. We would 

open up the electronic voting system for the vote on the question 

at hand. And so we were at the direction of the Chair. When do 

we initiate the vote and ultimately when to close it. So I guess in 

a sense we would be, like Charlie said, sort of an agent of the 

Chair to operate the system and be there to make sure that all 

Members are recorded. 

Mr. PENCE. So if I may, Mr. O’Sullivan, at the direction of the 

Chair, you conduct——

Mr. O’SULLIVAN. We would initiate the vote. 

Mr. PENCE. You initiate the vote, but then you conduct the vote 

in a manner that—is it your understanding that the Chair is in roll 

call or the conduct of the vote or do you perceive that the conduct, 

the administration, the assembling of the vote is the purview of the 

Clerk under the rules and under the traditions? 

Mr. O’SULLIVAN. We have to make sure Members are recorded, 

that their votes are cast and recorded. 

Mr. PENCE. I want to be sensitive to the balance of our panel, 

but let me ask you a couple of follow-up questions. Thank you. If 

I can. Mr. Johnson, again, you were talking about the electronic 

voting system during your previous testimony. And you said the assumption and procedure, the tradition, the custom, and then, I 

think, I have to look at the record, you made a professorial sidebar 

but then you came back to, I think your phrase was the Tally 

Clerks was the custom. Did I hear correctly in your testimony that 

this business of the tally clerks in their role in their assembling of 

the vote, that that is the core of the way that a vote has been conVerDate Aug 31 2005 00:06 Aug 29, 2008 Jkt 042409 PO 00000 Frm 00017 Fmt 6633 Sfmt 6602 E:\HR\OC\A409.XXX A409

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ducted and essentially certified throughout the history of the institution? 

Mr. JOHNSON. Yes. That would reflect what I was trying to say. 

I did not mean to engage in semantics between ‘‘control’’ and ‘‘conduct.’’ As you will discover if you haven’t already, I suppose there 

are always efforts to try to control timing of a vote from various 

parts of the Chamber. Those efforts are resisted properly by the 

Chair by use of the tally clerks’ slips. So the term ‘‘control’’ in that 

sense has a more loaded meaning than I meant to convey. 

I am not trying to say that the Chair is susceptible to any kind 

of influence—which would diminish the accuracy of the vote. 

Mr. PENCE. The last question was just specifically on the incident 

referred to Deschler Brown, volume 14 that took place in 1995. I 

think you testified that in that instance the Tally Clerk had handed a slip to the Chair and using the slip the Chair announced the 

result. And then the next day by unanimous consent that vote was 

vacated and the vote was retaken; is that correct? 

Mr. JOHNSON. Yes. 

Mr. PENCE. The Chair had called the vote as a consequence of 

what we would call the ordinary operation of the Tally Clerk’s roll? 

Mr. JOHNSON. As I recall, I was there, the moment that the 

Clerk handed off the tally slip at 213 to 214, those Members were 

just beginning to emerge separately down the side aisles into the 

well. The Clerk had processed every other vote up until that moment and was handing up the slip when those Members approached and the Chair finally announced the result and said the 

amendment is not agreed to. But the Chair, with the slip in his 

hand, which I think had been properly handed up at that moment, 

relied upon the slip, although the new Members were visible to the 

Chair. 

Mr. PENCE. This really is the last question and I will yield back 

to the vice chairman. 

You made a very interesting statement about there had been a 

long period in the history of the institution where there had not 

been appeals to the ruling of the Chair, if I heard you correctly. 

Mr. JOHNSON. Yes. 

Mr. PENCE. And that there has been in your words a proliferation of appeals. I certainly wouldn’t ask the Chief Tally Clerk to 

respond to this. Why—why is this that important? I mean, many 

people looking in—frankly many Members on the floor will think, 

well, if you disagree with the Chair, we will appeal the ruling of 

the Chair. But I thought that you implied in your statement that 

there was something extremely important that reflected in that 

time and history when people did not appeal the rulings of the 

Chair, and I wondered if you might elaborate on that. 

Mr. JOHNSON. Mr. Pence, I was trying to make the point—maybe 

it seems it is self-serving, but it shouldn’t—that the appeals began 

to proliferate not because Members were in disagreement about the 

accuracy of the Chair’s rulings, but rather to establish voting 

records—this has gone on with appeals from both sides—voting 

records on the merits of the underlying proposition, for example, on 

the consideration of an amendment which was not in order because 

the Rules Committee prohibited it. 


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There have been several occasions where the Members have offered such an amendment anyway knowing that it was going to be 

ruled out of order. An appeal of the ruling of the Chair was a demonstration of the frustration with a special rule that might be governing that process. But the notion that appeals would be used to 

establish voting records which could then be perhaps spun in various circles, Members being for and against a proposition was misguided because, where the real vote was on the propriety of the 

Chair’s ruling. 

When the appeals began to creep back in, when Bob Michel was 

minority leader, he would support the Chair. He would never support an appeal from his side if he thought the Chair’s ruling was 

correct. I think the most institutionally minded Members, regardless of party, would support the Chair. 

There are precedents which say the Chair’s count for a quorum 

for the yeas and nays of a division cannot be appealed. The Chair’s 

statement of the numbers cannot be appealed directly. There is 

that new rule which you may be asking about—and I am not the 

expert on that—which says the Chair cannot hold a vote open solely to change the outcome. 

Mr. PENCE. You are saying that what was included in the history 

of the institution was only utilized when there was an actual question about the tally of the vote or the interpretation of the rules, 

which has turned into a more substantive opportunity to record actual content, and that is a helpful clarification. 

I thank my colleagues and yield back. 

Mr. DAVIS. Thank you, Mr. Pence. Let me actually pick up, Mr. 

Johnson, on an observation that you made. You were in your exchanges with the chairman, Mr. Delahunt; you were drawing distinctions between custom, practices, precedents, and the formal textual rules of the House of Representatives. I don’t want to dwell 

too much on the difference, but I want to make one observation and 

perhaps get you to respond to it. 

One of the issues whenever the House or a committee of the 

House examines the propriety of a presiding officer’s actions is obviously whether or not there was a violation of the rules or whether 

perhaps there was a violation of custom and practice. And those of 

us who are lawyers are familiar with the idea of notice. And one 

of the governing concepts in the civil and criminal rule is that you 

are on notice as to whether your conduct is actionable or in violation. 

The strongest kinds of notice exist when someone violates a textual rule; I assume you agree with that. Something that is written 

down. If you are in a position of responsibility, you are often presumed to know the written rules, the written obligations. And it is 

possible for someone to take you through the text and then through 

a history of interpretation of the text. 

If the allegation is that a custom and practice was violated, it 

strikes me that might—by definition—raise some problems from a 

notice standpoint. I think you would probably agree with me that 

the body of custom, practice, precedent—because it is not necessarily captured in one place because it is based on the tendencies 

and given subjective interpretations—it may be harder to flesh out 

a textual definition of the violation. 


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We have a rule book in front of me right now. If I am alleging 

that somebody violated a rule, I can point to a clause and a page 

and a text and say that your actions don’t comply with them. If I 

am saying that you violated a custom or practice or precedent, it 

strikes me that may be harder. Can you react to my observations? 

Mr. JOHNSON. I agree with all of those observations. It may be 

harder to respond if compelled to look for text to put something in 

context, but not necessarily impossible. That is why I tried to 

anecdotally suggest that if the Chair would want to know whether 

any Speaker had ever opined about the role of the tally clerks, one 

could do some research, as I did yesterday into Hinds’ and Cannon’s Index, volumes 9 through 11, under the category ‘‘the yeas 

and nays.’’ There was a little caption that led me to the actual 

precedent I just read from. It wasn’t as immediate as looking for 

a black letter arrangement in the rule book. 

Now, the small print that follows this and other rules are citations either to the date volume and section citations to printed 

precedents or if those are not yet published in the precedents, they 

are citations to dates and to permanent record pages. If it is the 

Speaker’s own ruling, his or her name, Speaker Pelosi or Speaker 

Hastert for example, will appear parenthetically next to the citation. And if any other Member, Speaker pro tem or Chairman of 

the Committee of the Whole, there will not be a citation to the 

Member in the Chair. 

But in any event, it is less frequent, I would dare say there are 

fewer people, certainly fewer Members and perhaps fewer staff who 

take the time and have the inclination to research some of these 

small still usage and tradition descriptions. It is not impossible, but 

I don’t disagree with your characterization. 

Mr. DAVIS. The rules are much more available to Members and 

presiding officers than the customs and practices and precedents 

the House, as a general rule. I would assume you agree with that. 

In terms of being able to resort to one as opposed to the other. 

Mr. JOHNSON. Readily resort to, yes. 

Mr. DAVIS. And let me go back to the 1995 example, because I 

think it is instructive for obvious reasons and it is one that perhaps 

most of my colleagues were not familiar because some of us on this 

panel have been here fairly recently. Some Members were here in 

1995—maybe perhaps one member of this panel was here in 1995. 

As I understand the scenario there was a Republican majority 

control in 1995, after the ’94 elections. The presiding officer obviously was a Republican and as you describe it, there was a tally 

sheet 214 to 213, properly handed to the presiding officer. Apparently accurate reflection of the recorded vote. As the presiding officer reaches out to pick up the tally sheet, two Members of the minority, two Democratic Members, come forward apparently manifesting their intent to vote. Apparently their vote had not been recorded. It was not a matter of a change. Their vote had not been 

recorded. The presiding officer chose to not give them the courtesy 

of recognizing them. There was consternation on the floor. There 

was a motion to adjourn. Apparently some discussions back and 

forth between the leadership, and the next day the vote was set 

aside. 


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As I understand responses to Mr. Delahunt, there was no privileged resolution. Did I understand that correctly? There was no 

privileged resolution around the dispute? 

Mr. JOHNSON. It did not seem necessary to either side of the 

leadership. The minority leader, as aggrieved as he was, used 

‘‘usual channels,’’ you might say as a British description, to get it 

reversed by unanimous consent. 

Mr. DAVIS. Was there a textual rule that you understood to have 

precluded the presiding officer’s actions on that day? 

Mr. JOHNSON. A textual rule? No, because he was announcing 

the result based on at least a momentary certification from the 

Clerk. So I don’t think there was a textual rule. It was a matter 

again of the custom and tradition of the Chair being fair. 

Mr. DAVIS. And just to stop you in that point for a moment, you 

would certainly agree that in 1995, then as now, there was no textual rule referring to the courtesy of recognizing Members who 

wish to vote. None of that was covered by the text then and now? 

Mr. JOHNSON. Unless you point to the first clause of the code of 

conduct, which says that all Members, including the Chair, shall 

conduct themselves at all times in a manner reflecting creditably 

on the House and within ‘‘the spirit and letter’’ of the Rules. To me 

that reference to the spirit of the Rules speaks volumes, and it is 

part of the code of conduct. There is no precise rule on the case in 

point. 

Mr. DAVIS. Then and now, there is no provision of the rules that 

specifically states that if a Member manifests an intent to change 

a vote, there is no rule that really governs that scenario specifically? 

Mr. JOHNSON. Let me point further to consistent opening day announcements of policy by Speakers, going all the way back to 

Speakers Foley and Gingrich. Through the early nineties, votes 

were held open interminably because Members could signal 

through the cloakrooms that they were on their way and the 

Chair—a tradition grew that the Chair would honor Members who 

had asked that the vote be held open and the business of the House 

was being impacted adversely. Speaker Foley first reversed this 

policy in 1993. 

Then one of the first things on opening day in 1995 that Speaker 

Gingrich announced was that he was going to adhere to a strict 17- 

minute cutoff. They wanted to change Members’ behavior. And you 

have to do it with some consequence in mind. You can’t just urge 

them on opening day to be prompt. The consequence was that if 

you were not there, the Chair was going to have a tally slip and 

announce the result based on the vote at that moment in time. But 

it would be based on a slip. 

The Chair also said and has continued to say to this day, Madam 

Speaker’s statement on January 5th, 2007 was that the Chair will 

never in effect disenfranchise a constituency by not allowing a 

Member in the well to vote or change his or her vote. So that consistent policy has electronic voting underlay, and so that is ‘‘black 

letter’’ as a printed announcement that has underlain every subsequent Congress since 1993, whether under a Republican or Democratic Speaker. 


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Mr. DAVIS. Let me follow up on that before I move to my other 

questions. In your experiences in the House, from what you recall, 

how many instances were there privileged resolutions involving alleged violations of custom and practice and precedent? 

Mr. JOHNSON. I would say they have begun to proliferate. Perhaps one of the most memorable was the collateral challenge to the 

3-hour vote prescription drug vote by questions of privilege from 

the Minority Leader on more than one occasion, even going over 

into the next Congress by alleging recurring violations of custom 

and practice. The questions of privilege—you have to distinguish 

between what a question of privilege can do and cannot do. It can’t 

be a substitute for a rules change. You can’t have a question of 

privilege say that the rules should have said something when they 

did not. 

So questions of privilege have been ruled out of order when they 

are attempts to change the rules or their interpretation. Questions 

of privilege go to the dignity and integrity of proceedings. The question was sometimes what the resolved clause was trying to answer 

with regard to custom and tradition, and in the case of the 3-hour 

vote it was to conclude that a breach of custom had occurred and 

assert that it should never happen again. 

Mr. DAVIS. One quick question about that. How many instances 

do you recall privileged resolutions challenging action of a presiding officer in terms of calling a vote? 

Mr. JOHNSON. I don’t know that I have seen any, other than in 

the aftermath of what happened August 2nd there were other such 

questions of privilege. 

Mr. DAVIS. I am asking prior to August 2nd. 

Mr. JOHNSON. I can furnish that for the record. One I can remember, Tip O’Neill was in the Chair, on whether a roll call vote—

the television should cover the floor during a vote as unedited coverage. That was offered as a question of privilege. 

Mr. DAVIS. But with respect to the very narrow question, I take 

it your answer is that you don’t have any recollection today of an 

instance where a presiding officer’s calling of the vote was challenged? 

Mr. JOHNSON. No, because the avenue is there most of the time 

for an immediate confirmation. 

Mr. DAVIS. And just to clarify, a Member can stand up and move 

for reconsideration of the vote if they so choose? 

Mr. JOHNSON. Yes, in the full House. 

Mr. DAVIS. And you mentioned the other avenue, informal discussion between the leadership to move by unanimous consent to 

set the vote aside. 

Mr. JOHNSON. Yes. 

Mr. DAVIS. Let me turn to the rule that was added by the new 

majority in the House in January of this year. It is a one-sentence 

addition to the clause 2(a), rule XX. This is a quote: A record vote 

by electronic device shall not be held open for the sole purpose of 

reversing the outcome of such vote. 

The language is interesting because frankly in my experience a 

lot of Members don’t actually know the language. They know that 

we did something to address the lengthy vote delay regarding the 

2003 Medicare bill. And by way of anecdote, even in discussing this 


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provision, a number of Members will say that my understanding is 

that the vote can’t be held open for purposes of influencing the 

vote. That is not written here. Not only is the word ‘‘influencing’’

not used, the word ‘‘purpose’’ is not used without the modifier 

‘‘sole.’’

A number of Members have said you cannot hold open the vote 

for the purpose of changing the vote. That is an inaccurate statement of the rule. Many formulations that I have heard anecdotally 

do not accurately state the rule. 

The rule says ‘‘for the sole purpose of reversing the outcome.’’ Let 

me raise two scenarios to both of you and get reaction. By definition ‘‘sole purpose’’ seeks to inquire as to the presiding officer’s intent. And as all of us know there can be multiple intents behind 

action. Someone could decide to leave a vote open with one possible 

intent being influencing the outcome or reversing the outcome. One 

could have another intent of leaving a vote open to allow Members 

to think about changing their votes or to reconsider on both sides. 

Obviously both sides are sitting there capable of being lobbied by 

the Members and capable of changing and a Member could leave 

a vote open for those two reasons—or the presiding officer could 

leave a vote open for those two reasons and have a third in mind. 

Perhaps there is a Member who is not here and we don’t know 

where that Member is and that Member could be en route. That 

Member could be in Maryland or in the tunnels. 

A Member—a presiding officer could have a fourth instinct, uncertain whether or not there are Members who are attempting to 

change their vote, could see motion in the well, not sure if people 

are moving around or if they are moving towards the well to 

change their votes. 

All of that to say, the rules seem to focus very clearly on exclusivity of purpose and they preclude and exclusively forbid a particular kind of purpose. But by definition it seems to me that the 

rules contemplate that a presiding officer could be motivated by 

multiple factors. Let me get you to respond to that. Does that make 

sense to you? 

Mr. JOHNSON. Yes, it is the mens rea of the Chair that is the test 

of whether this rule is violated. Who rules on what? The Chair, 

him or herself. The Chair presumably knows its intent. Others can 

claim to know because they have seen pressures brought to bear 

externally, but it is the Chair’s intent as discerned by the Chair at 

that moment in time as the vote is being kept open. I think that 

there have been several parliamentary inquiries in this Congress 

under this rule during the pendency of a vote, to which in two or 

three cases that I have seen the Chair has responded to the parliamentary inquiry that either the Tally Clerk has not yet finished 

processing changes or the Chair is aware that other Members are 

on their way to vote. 

Those are statements of public record showing that the Chair 

can, and does, have other considerations in mind, more than reversing the result. 

Mr. DAVIS. And as you understand the rules, Mr. Johnson, there 

is no provision of the rule which requires the Chair to declare or 

the presiding officer to declare his reason for delaying the vote. 


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There is no provision that anywhere requires a statement of intent 

on the part of the Chair? 

Mr. JOHNSON. To the contrary. I think that would be inappropriate for the Chair. 

Mr. DAVIS. And certainly if there is no custom, practice or rule 

to the contrary, it would be enormously unusual. 

Mr. JOHNSON. Let me point out, Mr. Davis, as the Chairman 

said, I am under contract as a consultant with the Parliamentarian 

to work on the precedents. But I am very close to the Parliamentarian and his staff and I honor them and they are dear friends, 

and I would do everything appropriate to tell people, when asked, 

that they are doing the right thing in the interpretation of this rule 

and they should be supported in their advice. 

But the question of how you challenge an alleged point of order 

on this rule is very difficult because it could come during a vote 

which is in progress. And if the Chair overrules the point of order 

because that was not his sole intent and some Member appeals the 

ruling of the Chair, the system is incapable, as I understand it, of 

allowing another recorded vote to be conducted within a pending 

vote. So the system would not allow a dispositive vote on the appeal from the Chair’s ruling if it ever comes to that. And hopefully 

it won’t. 

So when, if at all, is a point of order cognizable? Is it immediately following the announcement of the result? I think it does 

constitute a question of order from which an appeal can be taken. 

Now, there is some——

Mr. DAVIS. Let me stop you one second. I want to move and give 

other Members a chance to ask questions. Let me pose one question before I go to Mr. LaTourette. It deals again with the text of 

clause 2(a) of rule XX. As I said earlier, a number of Members mistakenly believe that it says changing the outcome, influencing the 

outcome, altering the outcome. It says ‘‘reversing the outcome.’’

So let me give you a scenario as my last question and you can 

react to it. I could imagine a vote being kept open, let’s say the 

number is 214 to 213. That is the number on the board. That is 

the number as far as the presiding officer knows. I could imagine 

a scenario where the presiding officer leaves that vote open for an 

extended period of time. There is an outcome that is on the board 

that has not yet been rendered final. One side is leading 214 to 

213. The presiding officer keeps the vote open. I can certainly 

imagine that there might be a challenge in that instance on the 

theory that the numbers are up, there is no one attempting to 

change their vote. Mr. Presiding Officer, you are keeping the vote 

open simply for the purpose of reversing the outcome. That is one 

scenario. That kind of scenario seems to be expressly covered by 

this rule. You can’t reverse something which has not yet occurred. 

There is another scenario where the vote is tied, that there is no 

outcome one way or the other in either situation. 

Mr. JOHNSON. There is an outcome. 

Mr. DAVIS. That is right. The motion does not carry if it is tied. 

But there is also a tradition and custom, as I understand it, of giving Members a chance—what I understand, the preference is for 

there to be a margin one way or another. You can react to that. 


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I understand that the rules don’t require that, but I want to get 

your reaction as to whether or not that is the custom. 

If for whatever reason the vote is tied, and that seems to be a 

different scenario than if there is a one-vote margin one way or another. Can you comment on that? 

Mr. JOHNSON. I believe I can. Because the rules say, in the case 

of a tie, the question shall be lost. So that is a result dictated by 

black letter rule. And I don’t think there is a custom or tradition 

that says, well, let’s just wait and see if someone changes so it is 

not a tie because it is more decisive. I don’t think—I have never 

advised an occupant of the Chair to wait and see if someone will 

change from a tie. 

Mr. DAVIS. But at 213 to 213 that would mean hypothetically the 

motion to recommit would not carry. 

Mr. JOHNSON. Yes. 

Mr. DAVIS. Therefore, someone who keeps the vote open to reverse the outcome, you would have to create a scenario that it was 

a motion to carry. 213 to 213, the motion fails. 

Mr. JOHNSON. A reversal is the key, you are right. 

Mr. DAVIS. 213 to 213, the outcome would be that the motion 

fails. To reverse the outcome would mean that the motion would 

have to carry. Correct? 

Mr. JOHNSON. That is correct. 

Mr. DAVIS. And the other scenario of it being 214 to 213 the vote 

being kept open for the purpose of someone flipping votes and turning it the other way? 

Mr. JOHNSON. Or someone else coming in. In either scenario you 

do not have 435 Members voting. On November 21st, 2003, all 

Members were there. 

Mr. DAVIS. Let me go to Mr. LaTourette. 

Mr. LATOURETTE. Thank you very much, Mr. Davis, and thank 

you, Mr. Johnson, for your testimony. I have three lines of inquiry 

but before I get to those three lines I want to follow up on some 

items that Mr. Davis mentioned in his questioning. Specifically, 

Speaker Pelosi at the beginning of this Congress, I think that is 

what you are referring to, the relevant part of her announcement, 

was that: Members will be given a reasonable amount of time to 

accurately record their votes. No occupant of the Chair will prevent 

a Member who is in the well before the announcement a chance to 

cast his or her vote. 

That is what you are referring to? 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. And again going back to the unfortunate event 

of 1995 that was included in the Speaker Gingrich’s opening statement as well. 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. So it could be argued that what the then occupant of the Chair did was violate the Speaker’s opening statement 

by not allowing those two Members of the minority who appeared 

in the Chamber and were trying to vote from casting their vote. 

Mr. Chairman, I ask unanimous consent that Speaker Pelosi’s 

opening day announcement be included in the record. 

Mr. DAVIS. No objection. 


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[The Speaker’s opening day announcement may be found in the 

Appendix.] 

Mr. JOHNSON. One little nuance. The Members were approaching 

the well, they were in the Chamber. And the use of the word ‘‘well’’

means that they are in the Chair’s immediate view as perhaps opposed to coming down an aisle. 

Mr. LATOURETTE. In my mind, as a Member, that is a distinction 

without a difference. You have people trying to vote. 

Mr. JOHNSON. I don’t dispute that. 

Mr. LATOURETTE. And the other one on the remedy for a violation of rule XX. If a point of order is made during the course of the 

roll call vote, there is no opportunity to appeal the ruling of the 

Chair. Isn’t the answer because it is hortatory and the remedy is 

a question of privilege? 

Mr. JOHNSON. That is a precise question the Parliamentarian is 

looking at right now. Another argument might be that it is subject 

to a point of order immediately following the vote, after which if 

the Chair is overruled on appeal, that could vitiate the vote. It does 

not necessarily change the result back to what it might otherwise 

have been. I don’t think anyone would suggest that if the Chair is 

overruled in his decision that he wasn’t holding the vote up solely 

to reverse the result and the House disagreed, that that would immediately change the result. It may vitiate the vote by operation 

of the rule. 

That is a matter of new interpretation. But the question of privilege could be another approach to it. 

Mr. LATOURETTE. And I would have to say, having this new rule 

in place, Mr. Davis’s questions really point to the fact that it is a 

rule that does not mean anything because how are we ever going 

to call on the person in the Chair unless he or she admitted it? It 

is a rule change that leaves me puzzled. 

Mr. JOHNSON. It does not mean anything unless and until the 

House, if permitted, reverses the Chair. Then it may mean something. 

Mr. LATOURETTE. This isn’t a question, but a statement—but you 

almost have to have the occupant of the Chair saying yes, I did it. 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. I want to talk to you about the role of the presiding officer. On page 804, in reference to the Speaker pro tem’s 

obligation on the count of the division. 

I think this applies to all. One of the suppositions on which parliamentary law is founded is that the Speaker will not betray his 

duty to make an honest count of the division. 

Is that reference to your letter of May 20, 2004? On page 2, the 

first full paragraph you write: ‘‘I believe that the long-standing tradition and role of the Chair in rendering impartial and proper decisions has been maintained and appreciated despite the switch in 

party majorities and despite occasional efforts to appeal various 

rulings. It has been reassuring when bipartisan majorities understand and support the rulings of the Chair solely on the basis of 

their propriety as nonpartisan institutional standards with precedential significance.’’


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And I think that is the paragraph you were discussing earlier 

and I would ask unanimous consent that that be made part of the 

record as well. 

Mr. DAVIS. Without objection. 

[The letter from Mr. Johnson, Congressional Record, May 20, 

2004, may be found in the Appendix.] 

Mr. LATOURETTE. We all know the Speaker of the House is elected by the majority party. The occupants of the Chair are representatives of the Speaker, appointed by the Speaker. And so for the 

past 12 years the occupants of the Chair have all been Republicans 

and since the beginning of this Congress they have all been Members of the Democratic Party. 

Could you describe from an institutional standpoint, what is the 

role of the presiding officer? Is he or she a partisan? Is he or she 

a Democrat in the way they conduct business? Are they combatants 

in debate or are they above the fray? 

Mr. JOHNSON. They are above the fray. They should be. 

They are not combatants. They don’t participate in debate. 

They are not supposed to. 

Regardless of the partisanship of the person appointed—we have 

always been very insistent with the Speaker’s staff when asked, regardless of who the Speaker happens to be, the staff requests from 

all Members asked to preside that they adhere to certain guidelines. Whether the Member is on the committee handling the bill; 

whether the Member is competent in the Chair. That is not information to be published, but the fact that so-and-so is in the Chair 

and so-and-so is not might be an indication that the Speaker’s staff 

believe that our advice about who is being called on to preside 

should be heeded. 

That is not always the case. on occasion there are Members who 

appear and disappear into and out of the Chair without advice 

from the Parliamentarian. The important point is once that Member is in the Chair, that an immediate conversation becomes appropriate between the Parliamentarian and the presiding officer, 

whether it is someone brand new or someone who has partisan 

stripes or whatever, to try to assure fairness and anticipate problems. 

So that if the Member feels that he or she cannot be nonpartisan 

or detached going forward, anticipation in this role is absolutely essential. You have to be able to look forward to see what might be 

happening on the particular issue and whether the person in the 

Chair can be impartial. 

I have asked people, I was not embarrassed to ask some Members in the Chair, ‘‘Do you feel you are appropriately in the Chair 

at this point?’’ And usually they say yes, but sometimes they will 

not even be aware that there is a potential perceived conflict, much 

less an actual conflict. 

And that conversation is in confidence. On your walkthrough the 

other day you probably saw the mute button. 

Did John demonstrate? The button along the edge of the rostrum 

allows the Chair and the Parliamentarian to have a conversation 

unheard by the two audio systems, in-house or public. The proper 

utilization of that button, the light will show if the microphone is 

on, and the ability to have that conversation is essential. 


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I have to believe that occupants of the Chair should be advised 

if they are not inclined to be above the fray. 

Mr. LATOURETTE. Let me get to something else you talked about 

in preparation of tally slips and some observations made by the 

Speaker in 1918. The staff pointed out during the walkthrough the 

press and public was not with us, so we have purloined some tally 

slips and I just wanted to have a tally slip displayed as I ask you 

some questions. 

Is that something you recognize? 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. That is the tally slip that is currently in use 

by the House of Representatives. 

Mr. O’SULLIVAN. We refer to that—we would call that a page 

from a yea-nay pad. 

Mr. JOHNSON. Slip. 

Mr. O’SULLIVAN. When we refer to the tally slip, it is the preparation for the call of the roll. It is another document that we use 

traditionally for the election of the Speaker. But if we have to call 

the roll we would use the tally sheet. 

Mr. LATOURETTE. What do you call this? A slip? 

Mr. O’SULLIVAN. I always call that a slip from the yea-nay pad. 

If it is tally sheets people are familiar with, that is fine. 

Mr. LATOURETTE. So whatever it is called, this is the document 

that the standing Tally Clerk prepares at the conclusion of the 

vote? 

Mr. O’SULLIVAN. That is correct. 

Mr. LATOURETTE. And Charlie—Mr. Johnson, during our 

walkthrough the other day we had the opportunity to speak with 

the current Parliamentarian of the House, Mr. Sullivan, and he indicated on page 43 of the transcript, not in response to any question, he said, ‘‘May I say something about the production of this 

slip? This is probably the most important quality assurance process 

step in the process because when I get that slip I know that the 

numbers that are written on that slip came from a voting system 

that was closed to further input at the time those numbers were 

written down.’’

I have two questions: One, do you agree with Mr. Sullivan’s observation about the importance of the slip? 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. And what is your understanding of the significance of that slip in a vote? 

Mr. JOHNSON. It is a de facto certification from the Tally Clerk, 

from the entire Clerk’s operation, transmitted to the Chair, that 

there are no more changes being processed into the system. As far 

as that Clerk is certifying at that moment—and those moments 

change, that the slip handed up is the result as the system has absorbed it with voting stations closed and no other cards being processed at that moment. 

Mr. LATOURETTE. So it is the Clerk’s certification pursuant to 

rule XX to the Chair through to the Parliamentarian that is the accurate count on the vote? 

Mr. JOHNSON. Yes. 

Mr. LATOURETTE. In your 40 years as Parliamentarian or in the 

Parliamentarian’s office, including the 1995 episode that we have 


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talked about, are you aware of any recorded vote conducted in the 

House of Representatives where a slip or a tally sheet has not been 

transmitted by the Clerk to the Chair? 

Mr. JOHNSON. No. There have been some belated simultaneous 

transfers as the Chair is reading, and this has happened—the 

Clerk is handing up the slip, the Parliamentarian is handing it to 

the Chair, perhaps as the Chair may be reading from the board, 

because the board says ‘‘final’’ on it. And if there is any discrepancy—Mark, you will have to correct me—where if the Chair is 

reading numbers that for whatever reason don’t coincide with what 

is on the slip, the Parliamentarian can use the mute button and 

say this is not being corroborated by the slip. 

Mr. LATOURETTE. And let me ask you that. If there were an instance where a slip is never transmitted by the Clerk through the 

Parliamentarian’s chair, how could the Chair call the vote? 

Mr. JOHNSON. How could in fact or how could properly? 

Mr. LATOURETTE. Properly. 

Mr. JOHNSON. Well, I would urge that there would be no other 

proper alternative to the announcement of the numbers and the 

announcement of the result. And I think—I hope John made it 

clear that it is the announcement of the procedural result, not necessarily the characterization as final on the board—and not necessarily the recitation of numbers. I can’t count the number of 

times when the Chair has read numbers from a slip only to have 

the Tally Clerk hand up another slip. Those are the up-to-the-moment numbers and that can happen several times in one vote. 

But I can’t imagine a way, because the machine — unless the 

machine is inoperable somehow at the last second, the Tally Clerk 

reports an inoperability, I can’t imagine the Chair’s doing anything 

other than following a certification from the Clerk. 

Mr. DAVIS. If you would yield for a moment let me inform the 

panelists and the Members there has been one vote that has been 

called on a motion to adjourn. Obviously we are at the very beginning of a 15-warning and I expect the vote to be on at least 20 minutes or so. I would propose that Mr. LaTourette, if you are near 

the end of your questions, that we go to you, that we stop so that 

we can cast this vote, adjourn for about 5, 10 minutes or so and 

reconvene. 

Mr. LATOURETTE. I appreciate that. I have one more line of questioning. I hope I can complete it in 10 minutes. 

The issue of pressure on the occupant of the Chair. And during 

your testimony you indicated that—the note that I made is that it 

is not uncommon for influence within or without the Chamber to 

be attempted to be placed on the occupants of the Chair. And I 

wrote down you said ‘‘properly rejected.’’ What do you mean by 

that? 

Mr. JOHNSON. I mean there is a distinction between when the 

Chair receives a signal from leadership, it is usually a signal, either verbal or some other way communicated from the majority 

leadership. The Chair has obviously been appointed by the majority, that as they view their monitor, from their perspective, if the 

Chair can close the vote, he should. Not that he must. Not that he 

is going to be excoriated by the Speaker if he does not. From the 

leadership’s perspective they would prefer that the vote either stay 


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open or close. There are signals that have been used over time— that suggest to the Chair what the leadership would like to see 

consistent with a proper call of the result. 

Mr. LATOURETTE. What do you mean—you indicated that that is 

not uncommon. I have seen it, we have all seen it. What did you 

mean by the phrase ‘‘properly rejected’’ and what I took you to 

mean—— Mr. JOHNSON. It means if the Chair knew that the vote was not 

fully processed, he would properly reject the importuning of the 

leadership to shut the vote down. 

Mr. LATOURETTE. And on the issue of pressure, Mr. Davis in his 

question talked about the difference between black letter laws and 

the rules and precedent and the notion—I don’t know if all of us 

are lawyers—that there is notice. You can’t be punished for conduct 

that you did not know was wrong. 

When there is a person in the Chair, what interaction between 

the person in the Chair and the Parliamentarian in terms of advising the occupant of the Chair that they are comporting with the 

rules, customs, and traditions of the House? Is there one? 

Mr. JOHNSON. Yes, and I think I alluded to it earlier. Preferably 

it is a constant interaction. It is a confidential interaction. And it 

is an anticipatory interaction. Because the Parliamentarian wants 

the Chair to be doing the right thing and being perceived to be 

doing the right thing. The conversation is ongoing, and the conversation can begin before the person is appointed. The best occupants of the Chair, I think if they are doing it for the first or second time, come for advice in advance, for a private tutorial if you 

will. 

Or new Members may be asked to preside during Special Orders 

during which time any of the Parliamentarians may talk to those 

Members and find out if they are interested in returning to the 

Chair in a more difficult role in some future time, and to answer 

any and all questions. Not to be a lecturer, but to answer any and 

all questions. 

Mr. LATOURETTE. And then my last question, you indicated during the 1995 vote that we have been discussing. Were you the Parliamentarian on the floor at that moment in time? 

Mr. JOHNSON. I think so. 

Mr. LATOURETTE. And did you offer advice to the occupant of the 

Chair that he was engaged in behavior that was, if not a violation 

of the Speaker’s announcement on opening day, certainly—— Mr. JOHNSON. It happened so quickly during that announcement 

that I believe I did say there are Members that haven’t been recorded. I did not hit the button and say to the Chair you are wrong, 

doing the wrong thing, you are going to be criticized. I did not have 

that much presence of mind. I wish I had. 

Mr. LATOURETTE. Would that have been an appropriate role for 

the Parliamentarian? 

Mr. JOHNSON. I think so. 

Mr. DAVIS. What we will do is temporarily adjourn and reconvene, and it is the Chair’s understanding that there is only one 

vote and the Members can quickly cast it and return so that Ms. 

Herseth-Sandlin and Mr. Hulshof have a chance to question. The 

hearing is adjourned for 10 minutes. 


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[Recess.] 

Mr. DAVIS. The Chair reconvenes the Select Committee. I recognize Ms. Herseth-Sandlin. 

Ms. HERSETH-SANDLIN. Thank you, Mr. Chairman. And Mr. 

Johnson, thank you. It was 24 days after you retired that I arrived 

to the Congress, and it has been fascinating to listen to your responses to the Members this morning. We have learned an awful 

lot. I think my colleagues have, and I look forward to sharing information with others of my colleagues. 

I do want to pick up on the line of questioning that Mr. 

LaTourette was pursuing as it relates to the interaction between 

the Parliamentarians and the presiding officer as time is drawing 

down. And it looks as though in terms of the steps prior to calling 

the vote. 

Could you talk a little bit about—you had mentioned that there 

had been times that the Chair is starting to read or has read the 

numbers and then another tally slip is presented. Can you talk 

about what leads to multiple tally slips being prepared and presented to a presiding officer? 

Mr. JOHNSON. Yes. As the vote winds down, there are cue cards 

available. Some Chairs really read them, others have enough experience or at least think they know what is on the cards. The Chair 

first asks are there any other Members who wish to be recorded. 

You have all experienced that. And only after that does the Chair 

inquire are there any other Members who wish to change their 

votes? That question from the Chair is often the signal to the Tally 

Clerk potentially to shut down the voting stations. When the Chair 

asks for changes. 

Mr. O’SULLIVAN. In practice, though now it is a cue, but we don’t 

immediately—if other Members are appearing to vote we don’t immediately close the voting stations. 

Mr. JOHNSON. That is right. If the Chair has asked that and 

knowing that there are going to be a number of Members voting, 

clearly it is a signal for the stations to be kept open even after the 

Chair’s first inquiry. But once the slip is handed up and the Chair 

begins to read from it, many times the Tally Clerk will say to the 

Parliamentarian, ‘‘here is another slip, because someone else has 

just come in.’’ The Tally Clerk won’t have given a slip initially until 

he feels that everyone is in the system that they know about. Either electronically or by voting cards that have been submitted at 

the rostrum, the red or green or amber cards which are either submitted because a Member may have forgotten his electronic voting 

card or because it is a vote change within the last 5 minutes of a 

15-minute vote. 

And until the Tally Clerk correctly compiles a list of changes, because changes are always announced, as I recall, by the Reading 

Clerk, who is given the list of changes by the Tally Clerk and read 

just prior to the announcement. That list of changes obviously goes 

into the Record and it is considered important contemporaneously 

because it shows leadership and other Members who are changing. 

And changes made electronically within the first 10 minutes of a 

vote are not going to be on that list. Or if it is a 5-minute vote and 

a Member has changed their vote electronically that Member will 

not be on that list. But if a Member submits a card at the well, 


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he or she will be on the list. And it is appropriate I think for 

changes to be shown. 

But even so, I don’t think the Tally Clerk prematurely hands a 

slip up knowing there is still some processing to enter into the system. I don’t ever recall that. But at certain moments where the 

Tally Clerk feels that he has cleared all the cards that are in his 

possession and marked them and preserved them, then a slip 

comes up. And very often Members will then appear to change 

votes or to vote initially. They may have been in the Chamber but 

just choosing not to vote until they are certain of their vote. And 

so all of those reasons perhaps account for new slips coming up. Is 

that responsive? 

Ms. HERSETH-SANDLIN. Yes, and so perhaps both you, Mr. Johnson and Mr. O’Sullivan can answer the next question, we talked 

about a proliferation of things here in the last few years. Have you 

seen incidences in which Members are going to the well to change 

their votes in far more frequency over the last few years than previously or has it always been the case that there are a lot of last 

minute changes of votes in the well? 

Mr. O’SULLIVAN. Ms. Herseth, that is a little bit difficult to answer. It depends on the roll call and the issue at hand. In general, 

I think the number of Members voting in the well have come down 

a little bit. 

In 1995, there was a change in Congress from the Democrats to 

the Republicans. In the beginning of that Congress for some reason 

we had an incredible number of well votes the first few months. 

And to the point where it was being questioned, was this sort of 

coordinated? We were having 40, 50 well votes per vote. 

Ms. HERSETH-SANDLIN. Let me clarify. I am asking specifically—

and you mentioned it is difficult to answer, it depends on the vote. 

Let me clarify, have you seen within the last couple of years increased incidences of Members who have voted on the EVS or even 

in the well who change their vote in the final moments or even 

after time has run out when voting on a motion to recommit? 

Mr. O’SULLIVAN. I would—probably say no. But with this caveat. 

Usually if a vote is going to create well votes at the end, it would 

be that type of motion, a motion to recommit. If we were going to 

have a vote that would cause a lot of well voting, it would probably 

be a motion to recommit or a motion where you get into sort of a 

double negative. If you vote yes, you are against it or if you vote 

no you are for it. One of those things. 

Ms. HERSETH-SANDLIN. And is it in those instances where there 

may be multiple tally sheets that are prepared and submitted but 

ripped up? 

Mr. O’SULLIVAN. Slips, yes, could be. 

Ms. HERSETH-SANDLIN. And would it be your advice, Mr. Johnson, as the Parliamentarian—you said earlier that anticipation is 

the key and conversations between the Parliamentarian and the 

presiding officer—would it be your opinion that there should be a 

conversation between the presiding officer and the Parliamentarian 

in anticipating an incidence of changing votes in the final moments 

or after time has run out on a particular motion whether it is a 

motion to recommit or other type of——


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Mr. JOHNSON. I would urge that conversation if the Chair is uncertain or hesitant to take an initiative. But hopefully, and I can 

say from experience, the best occupants of the Chair are very accustomed to viewing the scenario directly in front of them, with the 

Tally Clerk only a few feet away and they know that it is the Tally 

Clerk standing in the well who is talking to the Tally Clerk at the 

machine and then filling out the slip. The Chair sees that and the 

best occupants of the Chair don’t need the Parliamentarian to tell 

them to wait for the slip or wait for another slip because they will 

see and react to the dynamic of that situation. Or at least they see 

Members coming into the well, or if they see a dynamic where they 

think that the result may not be final on that slip, they will look 

potentially for another slip. 

But that is not to say that there aren’t occasions and there probably should have been more occasions where the Parliamentarian’s 

conversation with the Chair would have been helpful, if not necessary. 

Ms. HERSETH-SANDLIN. And you had said in response to questions of Mr. LaTourette that while you couldn’t recall another situation where the presiding officer called the vote before the certification of the tally slip, you don’t recall these simultaneous transfers where the Chair was reading from the board because the board 

had ‘‘final’’ on it. 

Does the Parliamentarian advise the presiding officer that he or 

she should not refer to the board at any point in the proceeding, 

but wait until the tally slip is presented? 

Mr. JOHNSON. Yes. Yes, I would say, having been through so 

many of those votes, there are times when you are either distracted 

or not as attentive as you should be to that precise moment. But 

the most important thing for the Parliamentarian, talking about 

acting with anticipation, is to prioritize what is most important at 

that time. Because there are many times where there may be a potential for distraction as Members and staff approach the Chair 

and the Parliamentarian is trying to keep them at a distance. At 

that moment the priority is to pay attention and to the advise the 

Chair. 

There may be a glance at the board and at the slip. If they don’t 

jibe and if the Chair happens to be reading from the board and you 

are handing him up a slip that does not jibe with it, you would stop 

him. But almost always what he is saying from off the board, assuming he is not reading from the slip, does jibe with what he is 

being given in his hands. 

So to talk about the contemporaneousness of that transfer, it is 

usually not a problem. But it can potentially be a problem. So 

when there is any doubt if it is brought to the Parliamentarian’s 

attention or the Tally Clerk’s attention or to the Chair’s attention, 

they could stop and indicate to everyone that they are relying solely on the slip. 

Ms. HERSETH-SANDLIN. So if a presiding officer began to call a 

vote reading numbers from the electronic board and the Parliamentarian did not yet have a tally slip in hand, you would hit the mute 

button and advise the presiding officer that a tally slip had not 

been prepared, ‘‘final’’ did not occur yet on the board? 


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4The rule was adopted in 1880, then an iteration of the current rule restricting the authority 

of the Rules Committee became a rule as of 1909. 5The revolt against Speaker Joe Cannon. 

Mr. JOHNSON. That would be the proper role of the Parliamentarian. Whether it is done in all cases, you know, there are so 

many mitigating factors and they are not excuses but that should 

be the role of the Parliamentarian. 

Ms. HERSETH-SANDLIN. And then Mr. O’Sullivan, how again is it, 

I know we talked some about this in the walkthrough, but given 

that Mr. Johnson did make reference specifically that there had 

been simultaneous transfers and the presiding officer may be looking up at the board and seeing ‘‘final.’’ How is it, again, that the 

seated Tally Clerk makes the decision to put ‘‘final’’? Is it because 

a tally slip has been prepared? 

Mr. O’SULLIVAN. Ms. Herseth, no. The word ‘‘final’’ should appear 

after the presiding officer has announced the tally and has disposed of the issue at hand. Either the motion to reconsider is laid 

on the table or if there is no motion to reconsider, in the case of 

an amendment, the amendment is not agreed to and they move on. 

At that point the word ‘‘final’’ normally appears. 

Now, there have been instances where, as I think John Sullivan 

mentioned, you get to that final period where a Member presents 

himself in the well, and the presiding officer many times will allow 

that Member to be recorded. So then at that point the word ‘‘final’’ may have appeared because the Tally Clerk hit the key to begin 

to exit the system. You hit final and exit—and then you release the 

displays, by which, in effect, you exit the system. And if you hit the 

word ‘‘final’’ you still can input votes. That is sort of the situation 

sometimes. 

Ms. HERSETH-SANDLIN. Which occurred on roll call 814, because 

I believe that there were still cards that the seated Tally Clerk was 

entering, processing into the system after ‘‘final’’ appeared. 

Mr. O’SULLIVAN. I wasn’t there that evening, so I don’t want to 

speak for the person who was there. 

Ms. HERSETH-SANDLIN. And we will revisit, but you have explained how that could occur. 

Mr. O’SULLIVAN. It is possible. 

May I say something? I would say it is rare. It is really—it happens rarely, but it can happen where the word ‘‘final’’ appears and 

votes are still entered. But the normal 98, 99 percent of the time, 

even higher, is to wait until the final disposition of the question 

and then the word ‘‘final’’ and then release the displays. 

Ms. HERSETH-SANDLIN. Mr. Johnson, do you recall what year 

rule XIX, section 2 on motions following the amendment stage of 

the motion to recommit was added to the rules? 

Mr. JOHNSON. The guarantee—I am sorry; would you repeat that 

question? 

Ms. HERSETH-SANDLIN. In rule XIX, motions following the 

amendment stage, motion to recommit, do you recall what year a 

motion to recommit, that section was added to the written rules? 

Mr. JOHNSON. Well, an iteration of the current rule became a 

rule as of 1909.4 That was the Joe Cannon revolt.5 That was a 

huge issue because the Speaker was not only Speaker but he was 

Chairman of the Rules Committee, which had been reporting rules 


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6To the minority. 

7 By Speaker Rainey 

8 ‘‘Which, if offered by the Minority Leader or his designee..’’ 9Section 859 of the House Manual. 

10They were unsuccessful appeals which set further precedent. 

denying recommittal motions 6 and going right to final passage, 

probably as large a watershed moment as the House has faced in 

its procedural history. 

Until that time in 1909, when motions to recommit were being 

offered, they were being offered by the chairman of the committee 

to make so-called sweetheart corrections in order to deny the minority opposition the right to offer a substantive motion. 

So after the amendment was adopted in 1909, it stood until 1995, 

when the current rule was put in place. That was the result of a 

series of motions to recommit which were restricted by the Rules 

Committee in the late 80’s and early 90’s. The Rules Committee, 

relying upon a 1934 ruling,7 even in the face of the 1909 rule that 

guaranteed one motion to recommit, rule did not say ‘‘which 8 shall 

always be allowed to contain proper instructions.’’ And so Speaker 

Foley, I think correctly, but certainly in difficult rulings, which 

were appealed, which are all listed in here,9 ruled that it was within the authority of the Rules Committee to report a rule that limited, as long as it did not totally deny a straight motion to recommit. Those eight rulings were based on a 1934 precedent which was 

the only precedent in all those years. But it was a proper basis, 

even though there were appeals.10

Appeals have proliferated. 1990–1994 was a watershed period in 

the incidence of appeals. But there was a real dispute, the Republican minority felt that they were aggrieved, that the Rules Committee was shutting down proper motions to recommit. 

So the Hamilton-Dreier Committee on Congressional Reform in 

its 1993–94 bipartisan recommendation, and then the Republican 

rules package in January of 1995 presented the current rule that 

focused on the minority leader or his designee that they could not 

be denied instructions in a motion to recommit if they were proper. 

That is the current form of the rule, I believe. 

Ms. HERSETH-SANDLIN. Thank you. Back to the tally slip. Some 

of what we have heard about the circumstances regarding roll call 

814 is that no tally slip was ever prepared. Can you recall any instance, Mr. O’Sullivan, in which a tally slip was never prepared for 

a roll call vote? 

Mr. O’SULLIVAN. No. Like Charlie said, there may have been a 

situation where a Member jumped the gun and read the board as 

we were sending up a tally slip. It was just proceeded to finalize, 

close the vote on that basis. But off the top of my head I cannot 

recall a tally being announced without a slip. 

Ms. HERSETH-SANDLIN. But is it your understanding that the circumstances regarding roll call 814, even after there was an initial 

call by the Chair almost simultaneous with the ‘‘final’’ appearing 

on the board, and then Members who were in the well changing 

votes that continued to be entered after ‘‘final’’ was there, is it your 

understanding that even after all of that there was no tally 

slip——

Mr. O’SULLIVAN. That is right. That is right. 


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Ms. HERSETH-SANDLIN. One final question, Mr. Johnson. After 

we integrated the electronic voting system in 1974 and the roll of 

the Tally Clerks, as you stated at the outset of today’s hearing, was 

never perceived to change once the electronic voting system was 

adopted. And I think you joined the Clerk’s office, Mr. O’Sullivan, 

4 years later in 1978. 

Mr. O’SULLIVAN. Right. 

Ms. HERSETH-SANDLIN. Do either of you ever recall any discussions, either within the Clerk’s office or in the Parliamentarian’s office, or in consultation with prior Speakers, or Speaker Pelosi as 

she assumed the Speakership this year—again going back to the 

issue of the infallibility of the electronic voting system, but recognizing the quality assurance Mr. Sullivan pointed out in our hearing last week—has there ever been a discussion about changing the 

manner in which the Tally Clerks or their responsibilities and the 

need for a tally slip or addressing the situation of multiple tally 

slips in light of the electronic voting system and what it can provide the presiding officer? 

Mr. JOHNSON. Early in the history of the electronic voting, there 

were—I guess it was Carl Albert. The first 1 or 2 years of electronic voting permitted Members to change their votes as often as 

possible from voting stations even up to the very final moment. 

And that, as you can imagine, was leading to all kinds of uncertainty. Yet, there was still a slip. The uncertainty of the result with 

no instant accountability—there was going to be accountability the 

next day when people read the Record, but they were not going to 

see who was making the last-minute changes from terminal X in 

the last row. And votes would flip-flop unpredictably to the point 

where the Speaker—it was Carl Albert’s Speakership—with the minority leader agreed, that in the last 5 minutes of the 15 vote 

changes had been to be controlled in the well so that the Tally 

Clerks could get the changes—number one, and that there would 

be changes announced. They imposed that kind of discipline. The 

Members were not going to get a free ride so as not to show 

changes, as some were doing for that brief time, and the Tally 

Clerk was going to have some time to prepare that list of changes 

as well as to submit a tally slip to the Chair. 

There was never the absence of a slip. Initially, those slips 

changed rather quickly because votes would flip-flop two or three 

times within seconds before that adjustment was made by the 

Speaker. But otherwise, I don’t think the role of the Tally Clerk 

over time has ever been under discussion. 

Mr. O’SULLIVAN. The whole procedure of conducting votes and 

the closing of votes is almost the same since I have been here. 

Every vote has little permutations, a little different, a Member’s arrival, and things like that. But the whole idea is basically done the 

same. 

Ms. HERSETH-SANDLIN. And I said—I apologize, Mr. Hulshof, one 

final clarification. Mr. Johnson, you had stated that you thought it 

would have been a proper action that you think it would be a proper action for a Parliamentarian, in the event a presiding officer 

starts to prematurely call a vote in the absence of a tally slip, to 

hit the mute button and advise the presiding officer of that. Would 

it also be proper action of the Parliamentarian to converse with the 


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Tally Clerks to ensure that the tally slip was ultimately prepared 

and presented? 

Mr. JOHNSON. Yes. 

Mr. DAVIS. Before the Chair recognizes Mr. Hulshof, it appears 

that maybe another vote is being called which apparently is a motion to adjourn. So let me ask you, how many minutes do you think 

your questions will take? Obviously we have not enforced time limits today. The Chair would like to be fair. 

Mr. HULSHOF. I will attempt to conclude questioning to give us 

the opportunity to walk downstairs and vote. If you let me go forward, perhaps I can conclude. 

Mr. DAVIS. The Chair recognizes Mr. Hulshof. 

Mr. HULSHOF. Thank you, Mr. Chairman. Bringing up the rear, 

so to speak, a lot of these questions have been asked. I am hoping 

to tie up some loose ends. I guess the first one—I know Mr. 

Delahunt had another commitment—is to submit for the record 

Speaker Champ Clark, whose home county is now in the Ninth 

Congressional District that I am privileged to represent. I don’t 

have this on firsthand authority but my guess would be that he 

would be part of Cardinal Nation, not Red Sox Nation. Let me get 

that out early on. 

Mr. O’Sullivan, a lot of our focus has been on custom, precedent, 

usage, and Mr. Johnson has received I think the bulk of the inquiries. Let me, again just tying up a loose end, you were extremely 

helpful during our walkthrough last week. You spent over an hour 

with us. That has not been part of the record per se. But demonstrating for us specifically all of the procedures, the safeguards 

that the Clerk’s office has put in place in order to get to that certification. That was extremely helpful. 

And, again, while you haven’t had a lot of questions just a couple 

of follow-up questions. You now, as I heard you in the last response, you now have adopted our verbiage, that the tally slip, 

even though the tally slip as you designed is something other than 

this diagram that is just to your right, correct? 

Mr. O’SULLIVAN. We have the official tally sheet which we would 

use to call the roll, if we had to. 

Mr. HULSHOF. But for the presiding officer, this tally slip is the 

certification for the presiding officer? 

Mr. O’SULLIVAN. Yes. 

Mr. HULSHOF. And reading from the board is not certification by 

the Clerk; is that also true? 

Mr. O’SULLIVAN. I would think, yes. This is what we would say 

is the tally. 

Mr. HULSHOF. And as you stated before, roll call vote 814 you 

were not present? 

Mr. O’SULLIVAN. That is right. 

Mr. HULSHOF. This was during one of the appropriations bills, 

there were a lot of amendments. 

Mr. O’SULLIVAN. Right. 

Mr. HULSHOF. And I think you had already gone home for the 

night recognizing that the next day was going to be another day 

full of votes and to keep a fresh Clerk in the chair, you had gone 

home for the evening and you were not there that evening; is that 

right? 


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Mr. O’SULLIVAN. That is correct. That is correct. 

Mr. HULSHOF. Mr. Johnson, I want to just supplement the record 

in some of the things that you have referenced. For instance, one 

of the things that you referenced was Speaker Gingrich—the practice of receiving signals from the outside, that Speaker Gingrich 

changed the policy and in fact in our rule book that is reflected, 

is it not, on page 808, for those who choose to avail themselves of 

this, that in essence about two-thirds of the way down—I am reading now: Starting in the 104th Congress, the Speaker has announced that each occupant of the Chair would have the Speaker’s 

full support in striving to close each electronic vote at the earliest 

opportunity and that Members should not rely on signals relayed 

from outside the Chamber to assume that votes will be held open 

until they arrive. 

And every subsequent Speaker, including Ms. Pelosi, has adopted 

that condition; true? 

Mr. JOHNSON. Yes. 

Mr. HULSHOF. In fact, you also just referenced under Ms. 

Herseth-Sandlin’s question this practice of in the last flurry of 

votes being switched, I think that is also referenced as precedent 

on page 109—I’m sorry—on page 807: In 1975, Speaker Albert announced that changes could no longer be made at the electronic 

stations, but would have to be made by ballot card in the well. And 

further, that changes may be made electronically during the first 

10 minutes, but changes during the last 5 minutes would have to 

be made by ballot card in the well. 

Mr. JOHNSON. That was the reference I made earlier to Speaker 

Albert. That confirms the 1975. 

Mr. HULSHOF. Yes. There has been some back and forth between 

my friends Mr. Davis and Mr. LaTourette about the new clause in 

the rules about the reversal—reversing the outcome. And, in fact, 

at the bottom of page 807, there have been some parliamentary inquiries concerning the rule on holding votes open solely for the purpose of reversing the outcome. And it says at the top of 808: The 

Chair is constrained to differentiate between activity between the 

establishment of an outcome on the one hand and activity that 

might have as its purpose the reversal of an already established 

outcome on the other. 

And so that is the quandary, is it not, as we determine, try to 

determine the state of mind of the presiding officer? 

Mr. JOHNSON. Those three dates, Mr. Hulshof, are the sole precedents in this Congress up to the time of publication of the Manual. 

There may have been some subsequently, I don’t know. But those 

three are worth examining to see whether all of them were just responses to parliamentary inquiries or any of them were points of 

order. None of them were appealed at that point, but that is the 

body of precedent such as there is under this new rule. 

Mr. HULSHOF. Again, to clarify a few points raised by previous 

questions, in this vote in 1995 there was certification by the Clerk, 

was there not, a written tally sheet prepared prior to the presiding 

officer announcing the vote? You are nodding. 

Mr. JOHNSON. Yes, I am sorry. The first of what should have 

been several tally slips, or at least another one had been handed 

to him. That is my recollection. Where it said 213 to 214, and he 


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immediately read from that slip as Members—two Members were 

coming into the well. 

Mr. HULSHOF. There also has been some reference to the vote on 

November 21st of 2003, known as the Medicare vote. And I think 

you stated—again let me underscore this—that all Members were 

present in the Chamber; correct? In fact you recall, as I do, and I 

had the occasion to personally examine that vote in great detail in 

another forum, that even after the period of 3 hours or nearly 3 

hours had passed not all Members had recorded their votes. Do you 

recall that specifically? 

Mr. JOHNSON. No, I would say it stood at 216 to 218 for most of 

that 3-hour period with only one Member who was present abstaining, who had not yet voted. I remember who it was and where he 

was. 

Mr. HULSHOF. As do I. 

Mr. JOHNSON. He drew attention. 

Mr. HULSHOF. In the interest of time, let me get to the final couple of questions that I have, and again on the role of the presiding 

officer. In legal jargon what comes to my mind is the neutral and 

detached magistrate that the law contemplates. I am talking about 

civil law, criminal law and perhaps that doesn’t necessarily fit concisely our own rules but that we are looking for that presiding officer to be that fair, that neutral and detached magistrate. Would 

you agree with me? 

Mr. JOHNSON. Yes. 

Mr. HULSHOF. You mentioned competency in the Chair. Again 

just as a point of reference, when I used to work in the radio station, I had come from a campus station, I got stuck in the overnight time slot, midnight to 6, until I became a little more conversant putting sentences together and what have you. 

In a similar way, I think both parties have done this. Newly 

elected Members often get the Special Order times because there 

it is often not controversial rulings that they would have to make, 

but it allows them to log time in the Chair and gain some experience and then perhaps they are prepared to be in the Chair during 

more difficult times. Is that a fair assessment? 

Mr. JOHNSON. Yes. 

Mr. HULSHOF. There is something to the competence of the presiding officer. Is there a confidence level that you had as a Parliamentarian with certain Members? Probably as we can all acknowledge that Mr. LaTourette logged a lot of time, probably more than 

anyone on the select committee. Is there a confidence level that 

comes with the Parliamentarian depending upon who is in fact in 

the Chair? 

Mr. JOHNSON. Yes. 

Mr. HULSHOF. Again, why is that? 

Mr. JOHNSON. I suppose it is human nature and experience as 

much as anything. It is not only a personal friendship that may 

have developed, but it is a respect that, for example, if a Parliamentarian is temporarily distracted or not attentive or whatever, 

that that occupant of the Chair will presumably have had enough 

experience and incentive to take an initiative. 

Mr. HULSHOF. And given a presiding officer who had extensive 

experience presiding over the body, even during some difficult 


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times, would most certainly—maybe not understanding all the 

precedents or the written precedent, but would certainly understand the custom, the usage, the normal practice, the ebb and flow, 

if you will, even during a very difficult vote; would he not? 

Mr. JOHNSON. I would assume so, certainly hope so. 

Mr. DAVIS. Mr. Hulshof, are you near? 

Mr. HULSHOF. Yes, sir. In the interest of time, Mr. Chair, I would 

yield back. 

Mr. DAVIS. Thank you, Mr. Hulshof. I think we have 3 minutes 

left in the vote. Let me thank our two very able witnesses for being 

here and enlightening us today. Our witnesses will have 5 days to 

supplement the record. 

The Select Committee is adjourned. 

[Whereupon, at 11:09 a.m., the committee was adjourned.] 


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