Territorial Delegates to the U.S. Congress: Current Issues and Historical Background
Released: 2006-07-06T00:00:00

109th Congress Legislative Issues

Northern Mariana Islands Delegate

During World War II, the United States took control of the Northern Mariana Islands fromthe Japanese. Following the war, the United Nations made the islands a trusteeship of the UnitedStates. In 1975, the United States and representatives of the islands reached an agreement, knownas the "Covenant to Establish A Commonwealth of the Northern Mariana Islands in Political Unionwith the United States of America," and in 1986 residents of the Northern Mariana Islands weregranted U.S. citizenship. Under terms of the covenant, the Commonwealth makes its own laws.

The Commonwealth of the Northern Mariana Islands (CNMI), pursuant to the covenantagreement with the United States incorporated into P.L. 94-241 (48 U.S.C. 1801), currently electsa Resident Representative, which is different from the position of Resident Commissioner fromPuerto Rico. The Resident Representative formally presents his credentials to the Department ofState and is the representative of the CMNI government to the various governmental departmentsin Washington concerned with Northern Mariana Islands issues, primarily the Department of theInterior. Currently, the Resident Representative has no official status in Congress, although he hasfrequently testified before congressional committees.

Representation for CMNI in Congress was not discussed in the Covenant between the UnitedStates and the commonwealth in 1975. In 1986, a report to the Reagan Administration from a groupknown as The Commission on Federal Laws, called for granting the Northern Mariana Islandsnon-voting representation in the House, though no action was taken on this recommendation at thattime. (2)

Delegate Proposals in Previous Congresses. When the United States and the Mariana Islands agreed to the covenant of association, it was thoughtthat the Mariana Islands lacked sufficient population to warrant a congressional Delegate. Since then,as the population has grown, Members of the House have debated whether to create a new positionof non-voting delegate for the Commonwealth of the Northern Mariana Islands. Bills to authorizethe creation of such a post have been introduced regularly in the House since 1994, but suchmeasures usually have not been acted upon. Prior to the 108th Congress, the most recent committeeaction occurred in 1996, when the House Resources Committee reported H.R. 4067 (104th Congress, second session). Introduced by Representative Elton Gallegly, the bill provided forthe election of a Delegate from the Northern Mariana Islands for the congressional term beginningin 1999 (106th Congress).

The committee approved H.R. 4067 by voice vote on September 18, 1996. FourMembers (Representatives Wes Cooley, Helen Chenoweth, Jack Metcalf, and Joel Hefley), however,later asked that the committee's report reflect their opposition. A fifth committee member,Representative George Miller, filed a formal written dissent. The measure was reported to the Houseon September 27, 1996. No further action occurred.

The Resources Committee report noted that "NMI is the last and only U.S. territory with apermanent population that has no voice [in Congress]." The report continued:

The small population of NMI was cited by the MarianasPolitical Status Commission, which negotiated the Covenant for the islands, as the reason NMI wasunable to obtain a nonvoting delegate in the Covenant despite the backing of the executive branchof the Federal Government. NMI population of 15,000 (1970 Census) was considerably less at thattime than the populations of Guam (86,926) and the Virgin Islands (63,200) had been when thoseterritories were granted nonvoting delegates in 1972. Two years after approving the Covenantwithout a provision for an NMI delegate, however, Congress granted a delegate to American Samoawith a resident population of 27,000, most of whom were not U.S. citizens. Today, with a U.S.citizen population of 27,512 and a total population of 59,913, NMI is clearly within the thresholdof population established by precedents both historical and contemporary. (3)

In opposing the committee's recommendation, Representative Miller argued that theResources Committee had given little formal consideration to the proposal, not even holding ahearing or Member briefing on H.R. 4067 before the markup. Representative Millerfurther charged that there were long-standing labor law abuses in CNMI, particularly with regard toworking conditions that were unsafe or abusive and wage rates substantially below those foundamong the States of the United States or in neighboring Guam. Representative Miller urged thatreform of labor conditions be a pre-condition for authorizing a Delegate for CNMI.

This nation has a long history of requiring those whowish representation to change behavior such as polygamy or slavery, behaviors which are contraryto the beliefs and ethics of this nation as a whole. I recognize that some assert that we will have abetter opportunity to pressure CNMI into accepting the legal changes we seek if it is represented inthe Congressâ¦. Rather, I believe that only by sending a clear message of disapproval, by denyingmembership in the House of Representatives until sustained and substantive reforms areimplemented, will this House demonstrate that change within the CNMI is required to meet thestandard for equal participation in the Congress commensurate with that of other delegates. (4)

Delegate Proposals in the 108th Congress. OnSeptember 29, 2004, the House Resources Committee reported by voice vote H.R. 5135 , which was introduced by Representative Richard Pombo. The bill saw no further action inthe 108th Congress. The bill would have established the position of non-voting Delegate from theCommonwealth of the Northern Mariana Islands, and it would have provided for the election of thefirst such Delegate in the 2006 election cycle. The bill required, in a manner that parallels therequirements for service as a Member of the House, that the Delegate from the Northern Marianasbe at least 25 years old, a citizen of the United States for seven years, and a resident of the territory. Additional eligibility requirements stipulated that the delegate also be a "domicilary" of theCommonwealth, a qualified voter in the Northern Marianas, and, at the time of his or her election,not be a candidate for any other elected office. The bill saw no further action in the 108th Congress.

The committee report specifically addressed concerns about labor abuses which causedMember opposition in past Congresses. The report said:

Congressional influence, Administrative actions andlocal changes have resulted in reduced allegations of worker exploitation and human rightsviolations. The Committee supports the actions taken by Governor Juan Babauta, including laborlaw enforcement and improved coordination with the federal agencies that oversee the localimmigration and labor practices. H.R. 5135 will provide for a better means for theCNMI to keep Congress abreast of its progress and request further assistance in areas of need toaddress their unique economic base. (5)

The markup was preceded by a February 25, 2004 hearing by the House ResourcesCommittee entitled: "Examination of the Potential for a Delegate from the Commonwealth of theNorthern Mariana Islands." Testifying before the committee were the Governor of CMNI, Juan N.Babauta; Pedro A. Tenorio, the elected Resident Representative of the CMNI to the United States;Joaquin G. Adriano, President of the Senate of CMNI; David B. Cohen, Deputy Assistant Secretaryof the Interior for Insular Affairs; and Mrs. Ruth G. Van Cleve, former Director of the Office ofTerritories at the Interior Department. Mr. Cohen was accompanied by James J. Benedetto, FederalOmbudsman, Office of the Ombudsman of the Interior Department, who answered questions fromMembers.

While making it clear that the Administration recognizes that it is the House's prerogativeto decide its membership, Cohen said that "the Administration continues to support the generalconcept that the CNMI should be represented by a non-voting delegate to the U.S. House ofRepresentatives." (6)

All three elected officials from the CNMI testified in support of the proposal. "The peopleof the Northern Marianas do have a fundamental right to have a voice in their own government," saidGovernor Babauta. "I urge you to introduce Delegate legislation and see it successfully through thelegislative process." (7)

"The purpose of my testimony today is to respectfully request that Congress authorize anonvoting Delegate position in Congress for the CNMI," said Tenorio. "Such legislation wouldextend democratic representation to American citizens in the commonwealth and affirm Congress'commitment to the democratic principles of our Republic." (8)

Cohen told the committee he believed the cost of an additional Delegate from CNMI wouldbe about $1.1 million each year or the same as the costs for the Delegate from Guam. Those fundswould come from the legislative branch appropriation.

Representative George Miller discussed the concerns he had in 1996 and then said that hebelieved from the testimony delivered at the hearing that a "majority of these changes have beenmade." Miller said he continues "to have serious concerns" about the proposal to grant CNMI aDelegate, but felt it is "worth continuing the discussion."

Legislatively, House measures proposing to establish the office of territorial Delegate arereferred to the Committee on Resources, the successor to the earlier Committee on Territories andCommittee on Insular Affairs that considered bills concerning delegates in the 19th and early part ofthe 20th centuries. (The only modern exception to this referral practice was the bill to establish theoffice of Delegate from the District of Columbia. This measure was reported from the formerCommittee on the District of Columbia, the duties of which are now performed by the GovernmentReform Committee).

Delegate Proposals in the 109th Congress. OnFebruary 17, 2005, Representative Pombo again introduced legislation to provide a non-votingdelegate for the Northern Mariana Islands ( H.R. 873 ). The bill was ordered reportedby the House Resources Committee on May 18, 2005, by unanimous consent. On June 8, 2005, thecommittee filed a written report on the bill ( H.Rept. 109-110 ), addressing one concern that thepopulation of the island was not sufficient to merit a non-voting delegate to the House. That reportfound that with a U.S. citizen population of "35,000 and a total population of 69,221, according tothe 2000 Census, the CNMI is clearly within the threshold of population established by precedentsboth historic and contemporary." (9) Further action in the House could take place later during the 109thCongress. Action by the Senate would be required for the bill to become law and for the NorthernMarianas islands to receive a non-voting delegate.

DC Delegate Rights and Additional House Seat

Another issue under discussion in the 109th Congress is whether to grant the Delegate fromthe District of Columbia voting rights on the floor of the House and, if so, how it should be done. House Government Reform Chair Tom Davis introduced legislation ( H.R. 5388 ) (10) that would grant DC afull-fledged Member of the House of Representatives, one who would be able to vote on the Housefloor. The bill also would create a new House seat for another state, most likely Utah, whichnarrowly missed gaining such a position following the 2000 Census. Davis introduced similarlegislation in the 108th Congress. (11)

Under Davis's plan, the District of Columbia would be considered a congressional districtfor the purpose of electing a Member to the House. That Member would have the same rights asother Members, including the right to vote on the House floor. Regardless of the population of theDistrict, it would be limited to one representative in the House. The bill would not provide forrepresentation for the District in the Senate. Also, an additional House Member would be added tothe state delegation most qualified by population for an additional representative. That additionalrepresentative would be elected by a statewide ballot until the next reapportionment. The bill callsfor the number of Members in the House to increase permanently to 437 Members.

The House Committee on Government Reform approved the bill by a vote of 29-4 on May18, 2006. The bill was also referred to the House Judiciary Committee. Press reports indicate thatthe chair of that committee has promised Davis that the Judiciary Committee will consider the bill. Some Members during the markup questioned whether the bill would violate the constitutionbecause it would give voting rights to an individual who did not represent a state. (12) The House, theConstitution says in Article 1, section 2, "shall be composed of Members chosen every second Yearby the People of the several States."

Other Members have proposed granting voting rights to DC residents in other ways. DCDelegate Eleanor Holmes Norton has also introduced legislation ( H.R. 398 ) that wouldprovide full voting representation to the citizens of the District by treating DC as a state, with aHouse Member and two Senators representing it in Congress. This bill was referred to the JudiciaryCommittee.

Representatives Dana Rohrabacher has introduced legislation ( H.R. 190 ) thatwould permit a House Member to represent the District of Columbia in exchange for a new Memberfrom the state next in line for an additional Member, most likely Utah. The bill would explicitlydirect that District of Columbia residents be counted as residents of the state of Maryland forpurposes of federal elections. District residents would be eligible to vote for a Representative inCongress (the bill prohibits the division of the District of Columbia into separate Marylandcongressional districts), the two Senators from the State of Maryland, and for President. Separateelectoral votes for the District of Columbia would be ended, and the post of District of ColumbiaDelegate would be abolished. Representative Rohrabacher had introduced similar legislation in the108th Congress.

Action in the 108th Congress. On June 23, 2004,the Government Reform and Oversight Committee held a hearing on Chairman Davis' proposal. Thecommittee heard testimony from Representatives Dana Rohrabacher and Ralph Regula, who alsohad introduced legislation to provide some form of voting representation to residents of the Districtof Columbia. DC Mayor Anthony Williams and several others also testified.

Also in the 108th Congress, Representative Regula introduced legislation ( H.R. 381 ) that would have returned most of the territory now associated with the current District ofColumbia to Maryland (13) and transformed the DC Delegate into a House Member fromMaryland, but his bill would not have authorized another seat for Utah. The bill would have carvedout a section of the District, called the National Capital Service Area, over which Congress wouldhave retained legislative control.

The Davis, Rohrabacher, and Regula bills were all referred to the House Judiciary Committeeand the House Government Reform Committee. Under House Rule X, the Government ReformCommittee has jurisdiction over issues relating to the District of Columbia, while the JudiciaryCommittee has jurisdiction over measures relating to the elections of Members to the House ofRepresentatives and to the apportionment process. None of the measures saw action in the 108thCongress.

Replacement of Delegates and the ResidentCommissioner. On March 3, 2005, the House passed H.R. 841 , ameasure sponsored by Representative F. James Sensenbrenner requiring states to hold expeditedspecial elections to fill vacancies in the House of Representatives in the wake of a catastrophic event. The bill sets deadlines for primaries and special elections and would apply these provisions toterritories with delegates or resident commissioners: the District of Columbia, the Commonwealthof Puerto Rico, American Samoa, Guam and the U.S. Virgin Islands. A similar bill passed theHouse in 2004, but that version did not include the territories in its language. The Senate took noaction on that bill.

Evolution of Territorial Delegates

Northwest Ordinance

The office of Delegate -- sometimes called "nonvoting Delegate" -- dates to the late 1700s,when territories bound for statehood were granted congressional representation. The NorthwestOrdinance of 1787, which was enacted under the Articles of Confederation in order to establish agovernment for the territory northwest of the Ohio River, provided for a territorial Delegate. (14) Earlier, the Ordinance of1784 had made provision for territorial representation in Congress, but it had never been put intoeffect. (15)

Following ratification of the U.S. Constitution, the first Congress reenacted the NorthwestOrdinance. (16) Theordinance specified that the government of the Northwest Territory would initially consist of agovernor and other officials appointed by Congress. According to Section 9, once the free adultmale population in the district (17) reached 5,000, qualified voters would be able to electrepresentatives from their counties or townships to a house of representatives. (18) This elected housetogether with an appointed legislative council would elect a Delegate to Congress, as stated inSection 12 of the Northwest Ordinance:

As soon as a legislature shall be formed in the district,the Council and house assembled in one room, shall have authority by joint ballot to elect a Delegateto Congress, who shall have a seat in Congress, with a right of debating, but not of voting, duringthis temporary Government. (19)

The Delegate's duties, privileges, and obligations, were otherwise left unspecified.

First Delegate

In 1790, Congress extended all the privileges authorized in the Northwest Ordinance to theinhabitants of the territory south of the Ohio River and provided that "the government of the saidterritory south of the Ohio, shall be similar to that which is now exercised in the territory northwestof the Ohio." (20)

Four years later, the territory south of the river Ohio sent the first territorial Delegate toCongress. On November 11, 1794, James White presented his application to the House ofRepresentatives for seating in the Third Congress. (21) A House committee reported Mr. White's application favorablyand submitted a resolution to admit him, touching off a wide-ranging discussion about the Delegate'sproper role. (22)

An immediate question arose: Should the Delegate serve in the House or in the Senate? TheNorthwest Ordinance, which had been enacted by the unicameral Congress under the Articles ofConfederation, had only specified a "seat in Congress." Some Members of Congress argued that theproper place for Delegate White was the Senate since his method of election, by the territoriallegislature, was similar to that of Senators. Others suggested that perhaps Mr. White should sit inboth chambers. Proposals for seeking Senate concurrence in the matter of admitting Delegate Whiteand for confining his right of debate to territorial matters were dismissed. On November 18, 1794,the House approved the resolution to admit Delegate White to a nonvoting seat in that body. (23) At least one Delegate hasserved in every Congress since, with the single exception of the Fifth Congress (1797-1799).

Debate surrounding Delegate White's taking the oath further revealed House Members'various perceptions of his status. Some Members believed that Mr. White should be required to takethe oath. Representative James Madison disagreed. He argued:

The proper definition of Mr. White is to be found in theLaws and Rules of the Constitution. He is not a member of Congress, therefore, and so cannot bedirected to take an oath, unless he chooses to do it voluntarily. (24)

Describing Delegate White as "no more than an Envoy to Congress," Representative WilliamSmith maintained that it would be "very improper to call on this gentlemen to take such an oath." He characterized Mr. White as "not a Representative from, but an Officer deputed by the people ofthe Western Territory." In making the case that it "would be wrong to accept his oath,"Representative Jonathan Dayton emphasized Mr. White's lack of voting power: "He is not amember. He cannot vote, which is the essential part." Representative Dayton compared DelegateWhite's influence in the House to that of a printer who "may be said to argue and influence, whenhe comes to this House, takes notes, and prints them in the newspapers." (25)

Ultimately, the House decided that since Mr. White was not a Member, he was not requiredto take the oath. (26) Atthe same time, Congress, by law, granted Mr. White the same franking privileges and compensationas Members of the House. (27)

The White case established several precedents for the treatment of future Delegates. In 1802,Congress passed legislation that extended the franking privilege to, and provided for thecompensation of, "any person admitted, or who may hereafter be admitted to take a seat in Congress,as a delegate." (28) LikeMr. White, all future Delegates would sit in the House. This practice was written into law in 1817. The law stated, in part:

... such delegate shall be elected every second year, forthe same term of two years for which members of the house of representatives of the United Statesare elected; and in that house each of the said delegates shall have a seat with a right of debating, butnot of voting. (29)

Subsequent statutes authorizing Delegates specified service in the House. The decision notto administer the oath to Delegate White, however, did not become precedential. All futureDelegates, beginning with the second, would take the oath.

Unincorporated Territories

After the U.S. acquisition of overseas territories following the Spanish-American War, theSupreme Court put forth a new concept of territorial status. In a series of cases known as the InsularCases (1901-1922), the Court distinguished between "incorporated" and "unincorporated" territories. Incorporated territories were considered integral parts of the United States, to which all relevantprovisions of the U.S. Constitution applied. They were understood to be bound for eventualstatehood. The newly acquired territories were considered unincorporated, however, and, as such,only the "fundamental" parts of the Constitution applied of their own force. The political status ofunincorporated territories, the Court said, was a matter for Congress to determine by legislation. (30)

Congress did grant representation to two of the territories acquired from Spain -- PuertoRico and the Philippines. It did so, however, in a way that distinguished their situation from that ofstatehood-bound territories. Rather than authorizing Delegates, Congress provided for ResidentCommissioners to the United States from Puerto Rico (31) and the Philippines, (32) who were to be entitledto "official recognition as such by alldepartments." According to Abraham Holtzman:

[N]o reference to Congress or the House ofRepresentatives was made in the authorizing statutes. Apparently, it was Congress's intent that themandate of these representatives be broader than service in the U.S. legislature....This suggests a rolefor resident commissioners more akin to that of a foreign diplomat than that of a legislator.Nevertheless, the representatives from these two territories did serve in the House .... (33)

The Resident Commissioners from Puerto Rico and the Philippines did not enjoy the sameprivileges as the nonvoting Delegates; initially, they were not even allowed on the House floor. In1902 and 1908, respectively, the House of Representatives granted them the right to the floor. (34) In 1904, the Puerto RicanResident Commissioner was given the "same powers and privileges as to committee service and inthe House as are possessed by Delegates" and was deemed "competent to serve on the Committeeon Insular Affairs as an additional member." (35) The Resident Commissioners from the Philippines, however,were never permitted to serve on standing committees.

The posts of resident commissioners differed from those of delegates in other significantways. Initially, the Philippines, owing to its substantially larger population and dispersed land mass,was authorized two Resident Commissioners who served for three-year terms. It was not until theTydings-McDuffie Act of 1934, setting a timetable leading to the ultimate independence of thePhilippines, that the second Resident Commissioner position was abolished. The ResidentCommissioner from Puerto Rico was initially chosen for a two-year term, but Congress, at theinitiative of the Puerto Rican government, later extended it to four years. (36)

The Delegates' ranks continued to grow with the authorization of congressionalrepresentation for the territories of Guam and the Virgin Islands in 1972. (37) And through furtheramendment of House rule XII, "each Delegate to the House" was given the same committeeassignment rights and committee powers and privileges as Members of the House. (38) In 1978, the territory ofAmerican Samoa likewise gained the right to send a Delegate to the House. According to theauthorizing statute:

Until the Rules of the House of Representatives areamended to provide otherwise, the Delegate from American Samoa . . . shall be entitled towhatever privileges and immunities that are, or hereinafter may be, granted to the nonvotingDelegate from the Territory of Guam. (39)

Delegates Rights and Responsibilities

Since the first Delegate was sent to Congress, the House has struggled with the role Delegatesshould play in the House. Some Members, noting that the Constitution, in Article I, Section 2,requires that the House be made up of people "chosen every second year by the People of the severalstates," have expressed concerns that allowing Delegates to have the same rights and responsibilitiesas Members would be unconstitutional. Because Delegates, by definition, do not represent states, Members have on several occasions debated what rights they should exercise in the House.

Evidence of this debate is the variation in the role Delegates have played in committees. Forsignificant periods, Delegates were not appointed to standing committees, and could not vote duringcommittee consideration of measures or matters even on committees where they were permitted toserve. Which committees Delegates could serve on and their rights on those committee becamethemes in Congress over the last 200 years.

Currently, Delegates enjoy powers, rights, and responsibilities identical, in most respects, tothose of House Members from the states. Delegates can speak and introduce bills and resolutions onthe floor of the House and can speak and vote in House committees. Delegates are not, however,full-fledged Members of the House. They cannot vote on the House floor, whether the House isoperating as the House, or as the Committee of the Whole House on the State of the Union, aparliamentary device used by the House to expedite the consideration of legislation. In addition,Delegates cannot offer a motion to reconsider a vote and are not counted for quorum purposes.

Committee Assignments and Voting. The Housebegan to define the functions of Delegates when, on January 13, 1795, it appointed Mr. White amember of a select committee to investigate better means of promulgating the laws of the UnitedStates. (40) Duringseveral subsequent Congresses, the House continued the practice of allowing Delegates to serve onselect committees. William Henry Harrison, the Second Delegate of the Northwest Territory, servedon a number of select committees, some of which he had moved to create, that addressed issues suchas public land laws and the judiciary in the territories. (41) According to historians, in December 1799, Mr. Harrisonbecame the first Delegate to chair a select committee. (42) An active participant in House debates, Delegate Harrisonlikewise served as a House conferee in disputes with the Senate. (43)

The first regular assignment of Delegates to standing committee duty occurred under a Houserule adopted in December 1871. The rule directed the Speaker of the House to appoint a Delegateas an additional member of the Committee on the Territories and to appoint the DC Delegate as anadditional member of the Committee for the District of Columbia. (44) Additional committeeassignments were authorized in 1876, 1880, and 1887. (45) Describing the concurrent development of the Delegates'non-legislative role, Earl Pomeroy wrote:

The territorial delegate increased in stature appreciablybetween 1861 and 1890. Without the formal powers of a congressman, he acquired more of acongressman's influence and general functions. He was disseminator of information, lobbyist, agentof territorial officers, of the territorial legislature, and of his constituency, self-constituted dispenserof patronage. He interceded at times in almost every process of control over the territories, andgenerally no one challenged his right to intercede. (46)

Along with the right to belong to a standing committee, the House also debated what rightsDelegates once on the committees could exercise. Historians differ on whether delegates wereallowed to vote in committees prior to the early 1970s. One account states that as "additionalmembers" of standing committees from 1871 through 1971, Delegates did not have the right to votein committee. (47)

Some evidence suggests that Delegates were allowed to vote in committee in and around1841. According to a September 3, 1841, report of the Committee of Elections:

With the single exception of voting, the Delegate enjoysevery other privilege and exercises every other right of a Representative. He can act as a memberof a standing or special committee and vote on the business before said committees, and he may thusexercise an important influence on those initiatory proceedings by which business is prepared for theaction of the House. He is also required to take an oath to support the Constitution of the UnitedStates. (48)

Even if the Delegates at one point had that right, they had lost it by the late 1880s. OnFebruary 23, 1884, a proposition was made in the House that Delegates be allowed to vote incommittee. The proposition was referred to the Committee on Rules, but no action was taken. (49)

The right of Delegates to vote in committee resurfaced as an issue in the 1930s. After alengthy investigation, a House committee reported that neither the Constitution nor any statutessupported such a committee vote. Although a House rule provided for the appointment of territorialDelegates as additional members on certain committees, the report noted, "the House could not electto one of its standing committees a person not a Member of the House." According to the report:

The designation "additional member" applied to aDelegate clearly indicates the character of the assignment. Expressly the Delegate shall exercise inthe committee . . . . the same powers and privileges as in the House, to wit, the "right of debating,but not the right of voting." (50)

In the 1970s, the system of territorial representation in Congress underwent significantchange as more territories were granted Delegates and as Delegates were given increasedpowers. (51) For 11 yearsfollowing the admission of Hawaii to the Union in 1959, the Resident Commissioner from PuertoRico had been the only territorial representative in Congress. Then, in 1970, the District ofColumbia was authorized to elect a Delegate. (52) That same year, Congress enacted the Legislative ReorganizationAct, which contained a provision to amend the House rule on Delegates (rule XII) to read:

The Resident Commissioner to the United Statesfrom Puerto Rico shall be elected to serve on standing committees in the same manner as Membersof the House and shall possess in such committees the same powers and privileges as the otherMembers. (53)

The provision was contained in a floor amendment offered by Puerto Rico's ResidentCommissioner Jorge Cordova.

My amendment would abolish this privilege[service on a committee as an "additional member"]. It would provide for the election of theResident Commissioner to standing committees in the same manner as Members of the House areelected. This would mean, in effect, that the Resident Commissioner may be fortunate to secureelection to one of the three committees on which he now serves. But my amendment would alsoprovide that the Resident Commissioner have the same rights in committee as other members, whichmeans, of course, that he would have the right to vote within the committee.

Representative Thomas S. Foley supported the amendment claiming that the grant of votingrights in committee to delegates was within the power of the House.

The committees of the House of Representatives arecreatures of the House of Representatives. They can be extinguished at will and created at will. Itdoes not even require concurrence of the other body when we take such an action. Deprivingmembers of the right to vote in a committee is fully within the power of the House, by abolishingthe committee. Giving them additional rights to vote is within the power of the House by creatinga new committeeâ¦ . Nothing that the Resident Commissioner could do in a committee vote couldbecome a final decision unless a majority of the elected Members of Congress supported his position. However, in the standing committee itself I think that the Member from Puerto Rico should havea vote. I think the House has the constitutional authority to give him a vote in that limited area.

The amendment was opposed by Representative B.F. Sisk, the floor manager of the bill anda senior member of the House Rules Committee. Sisk asked rhetorically whether the Cordovaamendment "would be interpreted so that he would be entitled to vote in the Committee of the WholeHouse on the State of the Union."

In response, sometime later, Cordova observed that "The amendment which I have offered refersexpressly to the standing committees. I believe the Committee of the Whole House is not a standingcommittee." The Cordova amendment was agreed to by voice vote. (54)

In 1971, the House rewrote rule XII, according the rights in committee set forth in theLegislative Reorganization Act to the Resident Commissioner from Puerto Rico as well as to thenewly authorized DC Delegate. (55)

Committee of the Whole Voting Rights. Duringthe 103rd Congress, Delegates were allowed to vote in the Committee of the Whole, a developmentthat became the focus of intense partisan controversy. In January 1993, the Democratic majorityproposed to amend House Rule XII to permit such Delegate voting. In the event that a matter beforethe Committee of the Whole was decided by the margin of the Delegates' votes, however, anotheramendment (to House Rule XXIII) provided for an automatic re-vote in the full House, whereDelegates could not participate. (56) Supporters of the rule XII change portrayed it as a logicalextension of the Delegates' right to vote in committee.

A group of Republican House Members filed a lawsuit challenging the amendment to ruleXII. They argued that the rule change violated Article I of the Constitution by granting legislativepower to Delegates who were not "Members [of the House of Representatives] chosen every secondYear by the People of the several States." (57) They took issue with the characterization of the Committee ofthe Whole as a committee and maintained, instead, that it was tantamount to the full House. In theircomplaint, the plaintiffs stated:

[N]on-member voting in the Committee of the Wholeimpairs and dilutes the constitutional rights of the plaintiff-Representatives, both as Members of theHouse and as voters who enjoy the right to full, fair and proportionate representation in the Houseof Representatives. (58)

They further alleged that the House did not have the authority to unilaterally expand the powers ofthe Delegates.

The House defendants (59) countered that the House of Representatives was constitutionallyempowered to "determine the Rules of its Proceedings." (60) They argued that the Committee of the Whole, like othercongressional committees, was an advisory body and was not subject to Article I requirements. Theyrejected the plaintiffs' contention that the Committee of the Whole effectively controlled action inthe House, citing both the preliminary nature of its proceedings and the provision for an automaticre-vote in cases in which Delegate votes were decisive. (61)

In March 1993, Judge Harold H. Greene of the U.S. District Court for the District ofColumbia upheld the changes to the House rules. As his opinion made clear, however, he did soonly because of the automatic re-vote provision. "If the only action of the House of Representativeshad been to grant to the Delegates from the District of Columbia, Guam, Virgin Islands, andAmerican Samoa, and the Resident Commissioner from Puerto Rico the authority to vote in theCommittee of the Whole," he wrote, "its action would have been plainly unconstitutional." (62) His opinion further stated:

[W]hile the action the House took on January 5, 1993undoubtedly gave the Delegates greater stature and prestige both in Congress and in their homedistricts, it did not enhance their right to vote on legislation....[B]y virtue of Rule XXIII they [thevotes of the Delegates] are meaningless. It follows that the House action had no effect on legislativepower, and that it did not violate Article I or any other provision of the Constitution. (63)

In January 1994, the U.S. Court of Appeals for the District of Columbia Circuit upheld theconstitutionality of the House rule changes. (64)

In January 1995, at the start of the 104th Congress, the House of Representatives, under aRepublican majority, amended Rule XII to prohibit Delegate voting in the Committee of theWhole. (65)

Table 1. Territories Represented inCongress

Source: "Nonvoting Samoan Delegate to House," Congressional Record , vol. 124 (Oct. 3, 1978), p. 33287.

a. The measure of the First Congress re-enacted with changes necessitated through the ratificationof the Constitution the provisions of the Northwest Ordinance of 1787, enacted by theArticles of Confederation Congress.