Date: 1981-04-08
Speaker: ROBERT C. BYRD (democrat)
Chamber: S

Mr. President. in thinking about the enduring nature of the Senate. I often am reminded of the observation made by former Senator William Peffer of Kansas. He said: The Senate is a school. The worlds history is its text book. The record of a single days proceedings frequently shows a range of work as wide as Christendom. No man well made up can be there long. if he will but listen. without himself becoming wiser and better.. His opportunities for usefulness multiply as the new days come to him: his intellectual horizon expands. his view broadens and he grows stronger. The daytoday functioning of the Senate has given rise to a set of traditions. rules. and practices with a life and history all its own. The body of principles and procedures governing many Senatorial obligations and routinosattendance. quorums. voting. and pairing. for exampleis not so much the result of reasoned deliberations as the fruit of jousting and adjusting to circumstances in which the Senate found itself from time to time. From the first day of Senate business in 1789. the problem of attendance has been a major concern of conscientious Senators. The Continental Congress and the Congress of the Confederation had been plagued by the embarrassing problem of absenteeism. As a result. the United States Constitution provided that the two branches of Congress could compel the attendance of their members. but left the method of compulsion up to the individual chambers. Reflecting this responsibility. the first set of rules adopted by the Senate on April 16. 1789. ended with Rule XIX. which read. "No member shall absent himself from the service of the Senate without leave of the Senate first obtained." Though to this day that rule has remained unchanged. except for the deletion of the words "of the Senate first obtained". the principle embodied in it has not always commanded the most consistent adherence. One day during the first session. for instance. Senator Maclay reported with evident chagrin that a cry for adjournment went up in the Senate chamber in order that the Senators might watch the flight of a hotair balloon. On another occasion. Maclay recorded that the Senate adjourned because the President was giving a party. But most notable among these early breaches of duty was the week in November. 1804. when the Senate could not muster a quoun for several days. apparently because of the running of horse races. Though many Senators have been exceptionally faithful in the matter of attendance. and though stringent efforts have been proposed periodically to curb absenteeismsuch as Maclays suggestion that absence without leave be declared "disorderly conduct"-absenteeism has remained a chronic problem. Two early Senators distinguished themselves by attending only the first and last days of each session. long enough to pick up their pay. As late as 1907. one freshman Senator. eager not to transgress but pressed by unfinished business at home. asked some veteran colleagues how he might obtain a leave of ebsence. and was laughingly informed. "You just clear out I" Another earlytwentiethcentury Senator iron Arkansas won a degree of lasting infimy by never attending more than six consecutive days of Senate business in six years of Senate tenure. answering only 22 out of 200 rollcall votes in 1911. and reportedly being absent from Arkansas only thirty days during his term of office. Of course. the issue of absenteeism gave impetus to a consideration of methods of compulsion. At different times. the Senate authorized the SergeantatArms to take this or that action to compel errant Senators to come back to their desks. At one point or another. such actions entailed a written admonition. docking pay. publicizing of absences. and even the suggestion of the use of force. The issue of absences and compulsion of attendance has sometimes led to indignant exhortations on the Senate floor. accompanied by debates on drastic solutions. But. in the main. Senators have historically demonstrated a lenient attitude toward these vexing problems. usually mindful of the personal and political circumstances that might force their own absences. This is particularly true of absences involving campaigns for reelection. But more than one Senator has labeled the matter of presence on the floor for Senate business. per se. a false issue. Several Senators have called attention to the fact that Rule V forbids a members being absent without leaye. not from the Senate chamber. but "from the service of the Senate." None less than Henry Clay. in opposing a resolution for deductions from perdiem allowances for a Senators absence form his seat. insisted that absence from the Senate chamber did not necessarily imply neglect of Senate duties. Clay indicated that he did far more work at home. night and day. than he did on the Senate floor. and that much public business was facilitated more in private or in committee than at a Senators desk. The provision for docking members pay originated in 1858. several years after Clays death. at the time Congress abandoned its practice of paying senators and representatives only for the days they actually were present in the capital. Some members opposed changing from the daily rate to an annual salary on the grounds that It would only further stimulate the already high rate of absenteeism. They feared. not without justification. that a few of their colleagues would simply collect their salaries and spend much of their time at other pursuits. To weaken that argument. the House added a provision to the salary bill authorizing the Secretary of the Senate and the Sergeant at Arms of the House to dock members pay "unless such member assigns as the reason for such absence the sickness of himself or some member of his family." I have found no instance where senators pay was actually reduced due to nonattendance. One reference indicates that. as far as the Senate was concerned. the statute quickly became a "dead letter." In the House. where the docking prdvision .originated. six members salaries were reduced in the month following the provisions enactment. and then only because the members certified their absences to the Sergeant at Arms. After 1856. in the words of one member. the provision for docking fell into "innocuous desuetude." In August 1914. in the midst of an election campaign. a near recordlength session. and a hot summer. House Democratic Floor Leader Oscar Underwood introduced a resolution to enforce the 1856 act against the more than two hundred absent members. In speaking for the Democratic majority. Underwood stated. "If a member finds it more important for him to stay in his district and work for himself than to stay in Washington and work for his Government. he ought not to ask the Government of the United States to pay him his salary while he Is absent from this Hall." Underwoods resolution was adopted and it achieved his desired effect. bringing many members back to town. Two months later. as Congress was about to adjourn. Underwood successfully moved to rescind the resolution on the grounds that it was no longer necessary. Floor debate at the time indicated that the Sergeant at Arms probably would riot attempt to collect from the absentees. When Francis Valeo was Secretary of the Senate in the early 1970s. he received many letters from citizens urging him to use his powers under the 1856 act. He responded: The complexity of legislative demands upon a Senator. the calls made upon his time by his constituents. and the hours he must give to study of a wide range of current problems cannot be met in the present time except that he is sometimes away from the Senate. The fact is that a Senator has to be. and is. on duty at all times. 24 hours a day. whether in his home State or inthe Chamber. His absence from Washington and the Senate floor at no time separates him from the continuing responsibilities of his office anymore than when the President is away from Washington. or the Supreme Court Justices are away from Court on recess. The obligations of their office remain with them at all times. The provision was finally repealed in the Legislative Branch Appropriations Act of 1976. At any rate. presence in the Senate chamber by individual Senators remain a problem for some. To this day. many Senators are absent from the floor for days. but almost invariably appear at the required and appropriate times. fully cognizant of the business at hand and completely briefed on all that has taken place in the Intervening period of their absence. Some have absented themselves for weeks upon end. Naturally. gallery spectators regularly become exercised when. unfamiliar with all the work tak.. ing place in committees and Senators offices. and unaware of the communication network linking the Senate floor to all corners of the Capitol and the Senate Office Buildings. they so often observe the sparselyattended chamber where debates are conducted by a -mere handful of Senators for what appears to be the benefit of the presiding officer. the press. and an otherwise phantom audience at vacant mahogany desks. But. pragmatism aside. serious Senate business cannot be conducted without a quorum. Since this is true in every formal organization. not surprising is the fact that quorum considerations in the Senate have been primary since the birth of the Republic. Article I. Section 5. of the Constitution states in reference to the Congress simplY. "A Majority of each (Branch) shall constitute a Quorum to do Business." The definition of "a Majority" was not so simple however. Did that mean a majority of the number of Senators to which all the states in the Union at that time were entitled? Or was it a majority of those Senators duly elected from those states and living at that time? Or perhaps a majority of those duly elected and sworn In? Early precedents on this question were contradictory. and not until the War Between the States was the matter forced to a head as the result of the complicated relationships precipitated by the question of secession and the consti. tutionality of actions taken by citizens of the separated states. The House of Representatives promptly decided in 1861 that a quorum for House business consisted of a majority of "those chosen." But not until May- 4. 1864. did the Senate decide that a Senate quorum was "a majority of the Senators duly chosen." This was later refined to read. "A quorum shall consist of a majority of the Senators duly chosen and sworn." a change in which the House subsequently concurred. Currently. a quorum is "presumed" always to be present and daily business moves forward on schedule in the Senate until and unless the question of a quorum Is raised. As soon as the question is raised. however. the Secretary of the Seiate is directed to call the roll. Bells ring and buzzers sound. and it the quorum goes "live" Senators emerge from offices. committee rooms. the restaurant. the Senate gymnasium. or wherever. to answer the call. In some instances. a Senator may stay on the Senate floor only long enough to be counted present before he returns to the work with which he was occupied prior to the quorum interruption. The question of a quorum may originate for any one of several reasons. and. as a result. can have multiple values and uses. Though usually the question of a quorum is raised by a Senator. the presiding officer may raise it on his own initiative. A Senator In the midst of his speech may call for a quorum count to obtain a larger audfence. That might prove risky. however. for if a quorum cannot be raised. his speech could not continue and the declared minority might decide to adjourn. thus losing for him the opportunity to speak that day. Or. for one reason or another. another Senator might raise the question of a quorum during a speech. with the spcakIng Senators consent. and. by unardmous consent. the speaking Senator will retain the floor. But a speaking Senator loses the floor when the suggetion of a quorum Is raised. and only when it has been established or the quorum call Is called off can it be regained. In order to prevent the quorum call from deteriorating into a dilatory tool. subsequent and consecutive quorum calls cannot be suggested if no business has intervened between the calls. Mere debate or continued speechmaking does not constitute business in Itself. the Senate has ruled on several occasions. but intervening business is not hard to manufacture. Since a quorum is necessary for the Senate to do business officially. rulings of the Chair that a "present" quorum is as constitutionally valid as a "voting" quorum have been upheld by the Suprene Court. Without a quorum. the actual business of the Senate grinds to a halt. Messages may not be received from the President or the House. although bills or Joint resolutions can be signed. but no speeches are in order or votes taken other than those to produce a quorum. and debate must cease. though if previously ordered by unanimous consent. recesses are allowed. As in bullfighting. the killing of the bull is the climax of the drama and the moment of truth alike. so the act of Voting is often the decialve moment in the flow of Senate business. Most Senate votes are vivavoce. in answer to the presiding officers call for "ayes" and "nces." If a vote is in doubt. a "division" may be requested. and the Chair counts the Senators for and against the question either by a show of hands or by having Senators stand. But before the Chair. announces the result of the vote. if a Senator demands the "yeas and nays." and onefifth of those present sustain the demand. the Chair will order the Clerk at once to call the roll alphabetically. and each Senator will individually answer "aye" or "no" as his name is called. As in the cpye of the quorum call. bells and buzzers are triggered. and Senators come trooping to the floor. At the close of the roll call. those who have entered the chamber since their names wqre called will stand until they are individually recognized by the Clerk and record their votes recorded retroactively. however. and the Chair cannot even entertain a unanimous consent request that they be allowed to do so. This process is ironclad. Indeed. Senate Rule XII states that. "Each Senator shall. without debate. declare his assent or dissent to the question. unless excused by the Senate." However. for personal or political reasons. a Senator may want to avoid being recorded on an issue. and votedodging has always been a feature of Senate life. Members. at their voluntary request. are often excused from voting on issues in which they may have some personal interest. Others may avoid voting by arranging to miss a travel connection on the way back to Washington. or by failing to respond to a vote summons in their offices or a committee room. As to pairs. there is no Senate rule governing "pairs." But the unique practice of "pairing off" has evolved as a means of avoiding the confrontation of a recorded vote. This peculiar device Is highly complex and has often been attended by controversy. According to Thomas Hart Benton. "pairing" first appeared in the House of Representatives and signified an agreement by two members of opposing political parties to absent themselvps from the duties of the House. without the consent of the House. and without deducting their perdiem pay during the time of such a voluntary absence. Theoretically. this would maintain the proportional party balance mandated in the last election. and would allow a member at the same time to pursue Important personal or political duties without upsetting that balance. The first instance of this practice may have occurred in 1824. when a House Member announced that he was paired off with another Member whose affairs required his presence at home. In May of 1824. Representative Henry Dwight of Massachusetts rose to ask the indulgence of the House to excuse him from voting on two questions of disagreement to Senate amendments which had unexpectedly come up for a Vote. The following account appears in the Annals of Congress for May 17. 1824: Mr. Dwight of Massachusetts said he rose to ask the indulgence of the House to excuse him from voting on the two questions of disagreement with the amendments of the Senatean Indulgence. he said. which he was sure the House would unanimously grant. when they understood the grounds upon which it was claimed. An honorable friend had entertained. in common with himself. and almost all others. an opinion that the tariff bill would not come back from the Senate. They were both anxious to leave town. and had agreed to depart this morning. Another question of importance had unexpectedly detained him. The gentleman from Virginia. who was. upon all questions of the tariff. opposed to himself. had left town. and he felt himself bound in honor not to vote. Sixteen years later. In 1840. another pairing occurred when a House member announced that he was "paired off" with another member whose affairs required his presence at home. Sensing a violation of the letter and spirit of Lhe Constitution. Congressman John Quincy Adams unsuccessfully urged the immediate adoption of the following resolution: Resolved: that the practice of pairing off involves on the part of the members resortIng to it the violation of the Constitution of the United States. of an express rule of this House. and of the duties of both parties in the transaction to their immediate constituents. to this House and to their country. During Bentons term in the Senate. he declared that pairing had not yet penetrated the upper chamber. But by 1860. the practice had become so common in the Senate that a Senator. when called on for his vote. might refuse to answer to his name and would be excused from voting on the grounds of being paired with another member. Paradoxically. pairing remains a feature of Senate proceedings in spite of the fact that. while provided for by House rules. it goes unrecognized. as I have said. by the Standing Rules of the Senate. In the course of preparing for a yeaandnay vote. a paired Senator will announce the pair during the vote. These pairs usually occur in situations in which one Member who takes a particular position on an issue cannot be present in the Senate at the time the vote occurs. In order that his absence may.not have a deciding impact upon the outcome of the vote on the issue. he or she will arrange to have a socalled "live" pair with another Senator who intends to be present on the rollcall vote. In this way. the absent Member. as I have already Indicated. will be just as effective as if he had been present for the particular rollcall vote. in that. although he is absent. his "live" pair with the Member who is present cancels out what otherwise would be a vote cast by the present Member. The Member who is present announces the pair. For example. let us say that I have a pair with my distinguished colleague from West Virginia. Senator RANDOLPH. and I am present and voting. and Senator RANDOLPH. for good reasons. might have to be In West Virginia. When my name is called during the rollcall vote. or at the end of the rollcall vote and before the vote Is announced by the Chair. I would stand and address the Chair thus: Mr. President. I have a live pair with my distinguished senior colleague from West Virginia. Mr. RANDOLPH. If he were present and voting. he would vote "yea." If I were permitted to vote. I would vote "nay." I. therefore. withhold my vote. In other histances. I might proceed to vote and then withdraw the vote upon the announcing of a pair. and I would do it in this manner: Mr. President. I have a live pair with my distinguished senior colleague from West Virginia. Mr. RANDOLPH. who is unavoidably absent today. If he were present and voting. he would vote "yea." I have already voted "nay." Therefore. I withdraw my vote. The arranging of pairs has been decisive from time to time on very close votes. because it is possible to pair off enough present Senators to affect the outcome of the vote and perhaps make a difference of 1 or 2 votes which. had the Senators present not been paired. would have decided the issue opposite to the outcome that resulted. However. Senators generally will not agree to give a "live" pair except on the condition that the outcome Is not changed by virtue of the pair given. Senators are very circumspect and careful once they give a colleague a promise of a pair and they feel that they are honor bound to keep that commitment. But as I say they may make the promise to pair on the condition that the pair will not affect the outcome of the vote in which case they would be relieved of their commitment. Though pairing has been periodically questioned during the course of its prevalence in the Senate. the practice has been allowed to continue. though it violates two Standing Rules of the Chamberthe requirement of attendance and the injunction to vote. A socalled "dead" pair has no impact upon the outcome of any vote. It is merely the announcement in the RECORD of the positions of two absent Senators. with one of the absentees being paired "for" and the other "against." Such socalled "dead" pairing is usually not prearranged by the two Senators so recorded in opposition to each other. Rather. the Party Whip may sometimes use this method of stating how absent Senators would have voted had they been present for a vote. However. no absent Senators position on a particular vote will be so shown unless he so requests. He may. of course. at any later time. state for the RECORD how he would have voted had he been presept on a given rollcall. In addition to their duties and relationships within the Senate. Senators confront many occasions when they must meet and negotiate with members of the House of Representatives on a variety of matters. Interestingly. the joint rules governing the conduct of formalities in matters in which both branches of Congress are concerned were officially declared dead over a century ago. The joint rules in question found their inception in the work of the first select committee ever chosen in the Senate. The members of that committee. in conference with a similar committee from the House of Representatives. were charged to prepare "rules for the government of the two Houses in cases of conference." The report of this joint committee was accepted and. in time. new rules were added until. by 1876. the joint rules numbered some twenty items. In that year. however. notice was drawn in the Senate to the fact that no formal vote had been taken on this accumulated body of procedures. and its binding force was questioned. Subsequently. the Senate passed and sent to the House a resolution provid:ng that the joint rules. which had previously been observed through acquiescence and precedent. be adopted officially for that session of Congress. In response. however. the House made no reply. and there the matter rested for some months. At the end of that session. the House routinely requested the concurrence of the Senate in the suspension of two of the joint rules. At that point. the Senate "respectfully returned" the latter resolution to the House. notifying that worthy body that. since the House had made no response to the Senates earlier resolution. there were "no Joint Rules in force." Subsequently. the Senate in a heavy vote sustained that decision. which had been conveyed originally by the Chair. In spite of these actions. however. the legallyforceless joint rules continued to be printed in the Manuals of the Senate and House for nearly a decade. and. to this day. continue in many respects to govern relations between the two Congressional branches. But practice has often taken precedence over codification in the Senate. Thus. apparently. was the evolution of the Senates daily routine in the early part of this century to be explained. In the stress of experience. protocol and process alike were shaped. later to be set into print. In the "legislative ballet." unless otherwise specified. the presiding officer of the Senate and the Chaplain would mount the Senate dais at the stroke of noon to convene business with the blow of the gavel and the words of invocation. "Morning Business." the next item on the agenda. officially begins following the reading of the Journal of the previous legislative days proceedings. Ordinarily. however. the Journal reaaing is dispensed with by unanimous consent on request of the.majority leader. However. a member can insist on the reading of the Journal to its end. and this tactic. coupled with debates and votes for fantastic corrections of the Journal. has been one of the classic instruments of filibustering on occasion. "Morning Business" would moveto its conclusion through receiving messages from the President. reports and communications from the heads of departments other communications to the Senate. bills. joint resolutions. and messages from the House remaining on the table undisposed of from the previous days session. and any other bills. memorials. reports. and concurrent and joint resolutions for which the presiding officer calls. followed by resolutions over under the Rule. At the conclusion of "Morning Business." and not until so announced. the Senate proceeds to the consideration of the Calendar of Bills and Resolutions. Bills and resolutions not subjected to objection are taken up in their order. Locomotive velocity may develop at this point. as bills come up and pass through with no objection. Thus. something of a record was established on December 30. 1924. when the Senate considered and passed in one afternoon 136 "unobjected to measures" involving appropriation of $14 million. a princely sum in those days. However. at any stage. objection may be raised to any measure. forcing it to "go over" to a later day. This practice places great power in the hands of Individual members. and. more than once. this tool has been used as an instrument of mild retaliation by Senators who were irked by the prior actions of one or more of their colleagues. After the "unobjected to measures" on the Calendar have been considered and dispatched. unless "special orders" are scheduled. the Senate turns to its "unfinished business." In spite of this intricate process. however. the Senate has generally maintained a predisposition -for informality. Since the Senate is a unique matrix out of which. emerge law and legislation. Senators. even while observing an elaborate code of etiquette. decorum. and oftenstylized address. have fostered in their midst an air of nearOlymplan familiarity relative to their own rules. This attitude was presaged on April 16. 1789. when the Senate. acting on a draft of its own rules for conducting business did not adopt the rules as reported. but voted that the rules "be observed." This tone was characteristic of that first intimate group of men who met in secret session in a small room. The Senate has always been an assemblage of consciously unique people who anticipate being something of a law unto themselves. Indeed. as originally conceived before the advent of popular Senatorial election. Senators were intentionally insulated from the dangers inherent in the pressures of demagogic influences from the outside. free to decida legislation on its own merits and in the Senates own time. In spite of later changes that rendered the Senate more amenable to the popular will than originally contemplated. over the decades the Senate evolved a special mystique in which Senstors are expected to - operate by an almost unuttered code of honor. and to learn to relate to one another as if by a sixth sense. It should not appear strange. therefore. that rule V of the Standing Rules of the United States Senate states that. with the exception of other provisions of the rules. "Any rule of the Senate may be suspended without notice by unanimous consent." Thus. unencumbered by legalisms that might hamstring less auspicious legislatures. the Senate moves with an almost mystical sense of itself. and certainly with an imperial grace. to fulfill duties and responsibilities imposed on it by a set of Founding Fathers. some of whom conceived of the Senate that they had created as a precious enclave in which Providence and Destiny Incarnate would. be cast for a fortunate progeny of countless millions in NOVUS ORDO