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Power Derived, Power Assumed

George Nassar's picture

Whenever the presiding officer attempts to thwart the purpose of the office, the power resides in the assembly to pass the presiding officer by and proceed to action otherwise... The power is inherent or inseparably attached to the right of the body to convene and act.

Mason's Manual of Legislative Procedure, Sec. 576.1

I can think of no work on parliamentary law that does not hold as a fundamental principle that any authority of the presiding officer stems wholly from the body itself. Because of the fundamental import of this principle, all manuals on procedure also spell out recourses for the body in the case of a chair no longer following the will of the body.

I was given hope by Representative Jim Dunnam observing yesterday that House Rule 1, Section 3 states that "the speaker... shall receive propositions made by members and put them to the house." He correctly points out that for the speaker to arbitrarily refuse motions functions as a improper limit by the speaker on members' floor privileges. This argument would perhaps have been even stronger if someone would have pointed out that the use of Rule 5, Section 24, which has been used to state that the chair's right to recognize is "absolute", was patently mistaken — as it is obvious that a rule stating that there is no appeal from the recognition of the chair clearly makes no statement as to what is in order when there is no such recognition. I can think of no other way to put it than that Terry Keel basically made up a rule by assuming that this stands in the inverse case.

The proper citation for the right of the chair to not recognize someone, and for the lack of recognition to not be subject to appeal, would be Rule 1, Section 9(b). This states that "responses to parliamentary inquiries and decisions of recognition made by the chair may not be appealed." However, this does not speak as to when the chair does and does not have the right to make decisions of recognition — it simply says that when he does have that right, he can't be overruled. Neither this nor rule 5.24 states anything regarding conditions when he can rule not to recognize a member, though the parliamentarians and chair continue to cite the latter as verification of the chair's "absolute" power in this regard. Rule 5.24 does have more on this issue, in the second (and rarely cited) half: "There shall be no appeal from the speaker’s recognition, but the speaker shall be governed by rules and usage in priority of entertaining motions from the floor." The first half of this rule we have covered already; it speaks to the lack of appeal for recognition. The second half speaks to the speaker's power of recognition itself; the "but" preceding the clause clearly indicates that this is a limiting of power, that the speaker "shall be governed" by the floor rules. What are these rules? Again, this goes back to Rule 1, Section 3: The speaker shall... receive propositions made by members and put them to the house." No option is given. Thus, section 5.24 explicitly states that the speaker must follow Rule 1, Section 3's admonition to put members' propositions to the house. If one wants rules on specific cases where the speaker does or does not have the right to rule on recognition, one won't find any in the House rules — the House rules are silent on the matter. So, as the rules state, we fall back to Mason's Manual of Legislative Procedure. Section 578, No. 4 states that "the presiding officer may not prevent the making of any legitimate motions by hurrying through the proceedings or by other means. (emphasis added) Floor rules would thereby allow the speaker to refuse to recognize any requests for the floor to make motions that are "illegitimate", but that is all. This is far from the parliamentarian's and chair's ruling that the speaker's power of recognition is "absolute," a statement which is in no way defended by any of the House rules, or in fact by any treatise on parliamentary law I know of.

The next problem we encounter: even if Craddick had listened to his first parliamentarian, Denise Davis (it should be noted here that the chair makes rulings, not the parliamentarian; the parliamentarian is solely an advisory position, and the chair has the right to follow or not follow that advice as he wishes), and recognized a member who then moved to declare the chair vacant, Craddick could cite its lack of constitutionality as per the ruling he entered into the House Journal on May 26, regarding the status of the speaker as a constitutional officeholder. Of course, Rep. Jim Dunnam also had the answer to this, in citing Diffie v. Cowan , which stated that "it has long been held and accepted as settled law that... the speaker of a legislative assembly is not a 'state officer;'" for further support, it could be noted that Craddick has no authority to make any ruling on constitutionality of the actions of the body: this can be seen indirectly in the explanatory notes to Rule 1, Section 9 regarding the Speaker's role in handing questions of constitutionality to the body; though the rules as to the Speaker's explicit power for this are themselves silent, the explanatory notes clearly follow from an examination of Mason's Manual, which in Sec. 578, No. 6 states that "it is not the right of the presiding officer to rule upon the constitutionality of bills, because that authority belongs to the house." (Addressing the matter of constitutionality itself, Mason's states in Sec. 579, No. 1, that "under the constitutions of all the states, each house has the right to choose its own presiding officer," and yet in 578.1, "...the authority of the presiding officer is derived wholly from the body itself. The presiding officer is the servant of the body to declare its will and to obey its commands.")

We have now addressed most of the major issues brought forth in the parliamentary wrangling that has occurred in the House's battle for the speaker's chair in the past few days. We have not, however, addressed what the body can do in the light that, correctly or incorrectly, the chair refuses to acknowledge any motions for his removal. We enter here into an issue which is on the whole not at all addressed in the House rules; therefore, as the rules state, we fall back on Mason's Manual once again. Here we would find the rules on the removal of the chair, in Section 581, No. 1: "A presiding officer who has been elected by the house may be removed by the house upon a majority vote of all the members elected, and a new presiding officer pro tempore elected and qualified." Additionally, in Sec. 580, No. 2, "The presiding officer should leave the chair during the discussion of any business concerning the presiding officer." But, again, what if such motions are not being entertained by the chair? Well, that is the point where one must make sure a majority of the house is with them. All works on parliamentary procedure have methods in place for circumventing a chair that no longer represents the will of the body, as is made clear in the quotation from Mason's Manual that I opened with. To completely quote Sec. 576, No. 1:

Whenever the presiding officer attempts to thwart the purpose of the office, the power resides in the assembly to pass the presiding officer by and proceed to action otherwise. This right is but a branch of the power that assemblies exert in choosing temporary officers when the permanent officers are absent. It is not their absence that justifies the exercise of the power, but the fact they are not performing duties necessary to the proper fulfillment of the functions of the assembly. Inability or refusal to perform those duties has the same effect as actions in suspending the ordinary functions of the meeting and equally warrants the selection of the temporary chair. The power is inherent or inseparably attached to the right of the body to convene and act.

The details of this process are handled in Sec. 576, No. 2: "When the presiding officer refuses to put a motion that is properly before the body, the proper procedure is to select, at once, a temporary presiding officer to put the motion to vote. It is not legal or proper procedure for the member making the motion to put the motion to vote."

It is late Sunday — or more appropriately, early Monday — and Rep. Dunnam is again at the dais, arguing the rules with Rep. Turner, currently acting as chair. Rep. Dunnam is correct, of course, and the current parliamentarians have shown at many turns that they are not qualified to be sitting as parliamentarians. But as it is clear the chair will not recognize its error in ruling, and is now presuming that it "recognizes" motions instead of members, Rep. Dunnam asks if there is "any mechanism" by which the will of the body can be heard. I can only hope that the body will opt to exercise its prerogative to retract the "authority of the presiding officer [that] is derived wholly from the body itself" (Mason's Sec. 578 No. 1), and as a whole use their granted power to select a temporary chair — independent of those who would act against the will of the body.

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