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Non-voting members of the United States House of Representatives

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Non-voting members of the United States House of Representatives (called either delegates or resident commissioner, in the case of Puerto Rico) are representatives of their territory in the House of Representatives, who do not have a right to vote on proposed legislation in the full House but nevertheless have floor privileges and are able to participate in certain other House functions. Non-voting members may vote in a House committee of which they are a member and introduce legislation.[1][2][3]

There are currently six non-voting members: a delegate representing the District of Columbia, a resident commissioner representing Puerto Rico, as well as one delegate for each of the other four permanently inhabited U.S. territories: American Samoa, Guam, the Northern Mariana Islands and the U.S. Virgin Islands. A seventh delegate, representing the Cherokee Nation, has been formally proposed but not yet seated, while an eighth, representing the Choctaw Nation, is named in a treaty but has neither been proposed nor seated. As with voting members, delegates are elected every two years, except the resident commissioner of Puerto Rico who is elected every four years.

Privileges of delegates

Non-voting members serve exclusively in the House of Representatives; the Senate has no non-voting members (with the exception of the Vice president of the United States, who may vote only to break ties) and no members representing the territories or the District of Columbia. All delegates serve a term of two years, while resident commissioners serve a term of four years.[4] They receive compensation, benefits, and franking privileges (the ability to send outgoing U.S. mail without a stamp) similar to full House members.[5] The rules governing the rights of a non-voting member are set forth in the House Rules adopted in each congress (ie., every two years). Since 1993, they have changed three times, and current delegates—along with the resident commissioner—enjoy privileges that they did not have previously.[6]

Early history

John A. Burns of Hawaii, the last of a series of delegates to continuously serve in Congress

Territorial delegates existed before the ratification of the United States Constitution. The Northwest Ordinance of 1787 allowed for territory with "five thousand free male inhabitants of full age" to elect a non-voting delegate to the Continental Congress.[7] After the ratification of the Constitution, the first United States Congress reenacted the Ordinance and extended it to include the territories south of the Ohio River.

In 1790, the state of North Carolina—having recently ratified the constitution, becoming the 12th state—sent its congressional delegation to what was then the federal capital at New York City. Among them was former State of Franklin governor John Sevier, whose district (Washington District) comprised the "counties beyond the Alleghenies".[8] He took office June 16, 1790, however, the government of North Carolina had ceded Washington District to the federal government on February 25, 1790, and it was organized as the Southwest Territory on August 7, 1790.[9] He remained a member of the House until March 3, 1791, when he was appointed brigadier general of the militia.[10]

On September 3, 1794, James White was elected by the Southwest Territory, which contained the former Washington District, to be their delegate to Congress.[6][11] A resolution was put forth in the House to admit him to Congress, but as a delegate was not a position stated in the Constitution, the House debated what, if any, privileges White would have. As the Northwest Ordinance had only stated that a delegate is to sit "in Congress" the first debate was which chamber a delegate would sit in. Resolutions that he sit in both chambers and that his right to debate is limited to territorial matters were defeated. Ultimately, the House voted to allow him a non-voting seat in the House.[6]

Following his placement, representatives debated whether he should take the oath. Representative James Madison stated "The proper definition of Mr. White is to be found in the Laws and Rules of the Constitution. He is not a member of Congress, therefore, and so cannot be directed to take an oath, unless he chooses to do it voluntarily."[12] As he was not a member, he was not directed to take the oath, though every delegate after him has done so.[6] He was also extended franking privileges, which allowed him to send official mail free of charge, and compensation at the same rate as members.[6]

In 1802 Congress passed a law that specifically extended franking privileges and pay to delegates. An act passed in 1817 codified the term and privileges of delegates:

[I]n every territory of the United States in which a temporary government has been, or hereafter shall be established...shall have the right to send a delegate to Congress, such delegate shall be elected every second year, for the same term of two years for which members of the House of Representatives of the United States are elected; and in that house, each of the said delegates shall have a seat with a right of debating, but not of voting.[13]

From that point on, until August 1959, there was not a single congress without delegates. During the period from 1870 to 1891, there were as many as ten serving at one time. With the admission of Hawaii, and with Puerto Rico sending a Resident Commissioner, the office temporarily went out of existence.

Resident commissioner

Federico Degetau y González of Puerto Rico, the first resident commissioner in the United States Congress

Similar to delegates are resident commissioners, who represented the large areas acquired during the Spanish–American War, and for much of the 20th century were considered colonies, not territories and unlike the previously acquired areas which would become the contiguous U.S. or Alaska and Hawaii, did not initially have residents with the rights of or to U.S. citizenship.[14] Territories can secede from the United States with the consent of Congress,[citation needed] and in the case of the Philippines, they have.

Puerto Rico

Main article: Resident Commissioner of Puerto Rico
See also: Shadow congressperson § Puerto Rico shadow representatives

Puerto Rico, a U.S. commonwealth, has been represented by a non-voting resident commissioner since 1901. The resident commissioner holds a status similar to that of a delegate within the House, but serves a four-year term. The resident commissioner is the only individual elected to the House who serves for this duration.[15]

The Philippines

Main article: Resident Commissioner of the Philippines

From 1907 until 1937, while it was a U.S. territory, the Philippines elected two non-voting resident commissioners to serve in the U.S. House of Representatives. From 1937 until 1946, while it was a U.S. commonwealth, the Philippines sent one non-voting resident commissioner to the House. Upon independence in 1946, the Philippines ceased to be represented in Congress.

List of past delegates

Listed here by their congressional districts.

Overview of delegates
District Start End Duration
Alabama Territory 1818 1819 1
Alaska Territory 1906 1959 53
Arizona Territory 1864 1912 48
Arkansas Territory 1819 1836 17
Colorado Territory 1861 1876 15
Dakota Territory 1861 1889 28
Florida Territory 1822 1845 23
Hawaii Territory 1900 1959 59
Idaho Territory 1864 1890 26
Illinois Territory 1812 1818 6
Indiana Territory 1805 1816 11
Iowa Territory 1838 1846 8
Kansas Territory 1854 1861 7
Michigan Territory 1819 1836 17
Minnesota Territory 1849 1858 9
Mississippi Territory 1801 1817 16
Missouri Territory 1812 1821 9
Montana Territory 1865 1889 24
Nebraska Territory 1855 1867 12
Nevada Territory 1861 1864 3
New Mexico Territory 1851 1912 61
Northwest Territory 1799 1802 3
Oklahoma Territory 1890 1907 17
Oregon Territory 1849 1859 10
Orleans Territory 1806 1812 6
Philippines 1907 1946 39
Southwest Territory 1794 1796 2
Utah Territory 1851 1897 46
Washington Territory 1854 1889 35
Wisconsin Territory 1836 1848 12
Wyoming Territory 1869 1890 21

Current delegates

In the mid-1960s, a number of small territories that had no prospects of becoming states began to petition for representation in Congress. Starting in 1970, the House of Representatives started to grant representation to these territories, but with limited voting rights.

American Samoa

Amata C. Radewagen is American Samoa's first female delegate
Main article: List of Delegates to the United States House of Representatives from American Samoa

As the U.S. Virgin Islands and Guam had delegates in Washington, D.C., the American Samoa-based Political Status Study Commission had meetings with the delegates from these two territories. They came home to Pago Pago convinced of the importance of having this representation in the nation's capital. Members of the American Samoa Fono had already been attending budget hearings in Washington for over a decade by 1970. During a special session held in July 1969, Salanoa Aumoeualogo, the President of the American Samoa Senate, introduced Senate Bill 54 to create a delegate at-large to Washington with four-year terms (without congressional rights), which was approved by Governor Owen Aspinall on August 8, 1969. A. U. Fuimaono was elected at the first delegate at-large in 1970 before ending his term to run unsuccessfully for Governor of American Samoa. A. P. Lutali became the territory's second delegate to Washington in 1975. Fofō Sunia was elected in 1978 after Lutali declined to run for reelection. He went to Washington knowing his term would be limited to two years, since a law had passed establishing an official non-voting delegate seat for American Samoa. Sunia was elected as American Samoa's first congressional delegate in 1981.[16]

District of Columbia

Walter E. Fauntroy, delegate from the District of Columbia from 1971 to 1991
Main article: United States congressional delegations from the District of Columbia
See also: Shadow congressperson § District of Columbia shadow representatives, and District of Columbia voting rights

The District of Columbia is technically a federal district—not a territory, commonwealth or insular area. However, from 1871 to 1875, it briefly had a delegate to Congress. This situation did not last long and congressional representation was terminated. The district had no other delegates until 1971, when the House of Representatives agreed to seat Walter E. Fauntroy.[17] He then served in that position between March 23, 1971 and January 3, 1991, when Eleanor Holmes Norton was elected. Norton continues in that position.

U.S. Virgin Islands

See also: United States Virgin Islands' At-large congressional district and United States congressional delegations from the United States Virgin Islands

In 1972, the House agreed to admit Ron de Lugo as a delegate from the United States Virgin Islands, which had been a U.S. territory since 1917 after they were purchased from Denmark under the 1916 Treaty of the Danish West Indies. The current delegate, Stacey Plaskett, became the first nonvoting delegate to serve as an impeachment manager in the second impeachment trial of Donald Trump.[18]

Guam

See also: Guam's At-large congressional district

In 1972, the House also agreed to admit Antonio Borja Won Pat as a delegate from Guam, which had been a U.S. territory since 1899 when it was ceded to the United States by Spain under the Treaty of Paris. Won Pat had been serving as the Washington Representative since 1965, an office without congressional rights that lobbied to seek a place in the House.

Northern Mariana Islands

See also: United States congressional delegations from the Northern Mariana Islands

For thirty years, since 1978, citizens of the Commonwealth of the Northern Mariana Islands (CNMI) elected a resident representative, commonly known as Washington representative, an office without congressional rights that was established to represent the CNMI in Washington and performing related official duties established by CNMI law.

In 2008, the Consolidated Natural Resources Act of 2008, signed into law by President George W. Bush, replaced the position of Resident Representative with a non-voting delegate to the House of Representatives. The election of the first delegate took place in November 2008. It was the only contest on the ballot because CNMI elections traditionally occurred in odd-numbered years. Gregorio Sablan won the election and took office in January 2009.[19]

Native American treaty-right delegates

See also: Cherokee delegate to the United States House of Representatives, List of Native Americans in the United States Congress, and List of Native American politicians
Choctaw Nation Delegate to Washington Peter Pitchlynn who served as ambassador from 1845 to 1861 and again from 1866 to 1881
Cherokee Nation Delegate to Congress Kimberly Teehee

The Cherokee and Choctaw Native American tribes have treaty rights to send delegates to Congress. The right to a non-voting delegate to Congress was promised to the Cherokee by the Treaty of Hopewell in 1785 (affirmed in 1835's Treaty of New Echota) and to the Choctaw under the Treaty of Dancing Rabbit Creek in 1830, "whenever Congress shall make provision for [a delegate]". Congress has never provided for the appointment of delegates from Indian tribes.[20] The Choctaw tribe has never appointed a delegate to Congress[21] and the Cherokee had not until 2019.[22] However, the Choctaw did send a non-congressional delegate to Washington for most of the 19th century as an ambassador to represent them before the U.S. government, the most noteworthy being Peter Pitchlynn.[23]

In addition, the first treaty signed between the United States and a Native American nation, the Treaty of Fort Pitt (1778) with the Lenape ("Delaware Nation"), encouraged them to form a state that would have representation in Congress; however, it is unclear if the treaty would allow a delegate without the formation of a U.S. state.[24][25][26] In 2022, Deborah Dotson, president of Delaware Nation, expressed an opinion that their treaty right was "stronger" than the Cherokees' and voiced frustration about their treaty promises being ignored.[27]

A similar situation actively exists at the state legislature level with the Maine House of Representatives maintaining seats for three non-voting delegates representing the Penobscot (since 1823), the Passamaquoddy (since 1842), and the Maliseet (since 2012).[28] The rights of the tribal delegates has fluctuated over time but appears to have been born from a practice in Massachusetts General Court (Maine was a part of Massachusetts until 1820).[28] Unlike the situation at the federal level, Maine's state-level tribal delegates are established by state law rather than treaties.[28] As of 2015, only the Passamaquoddy seat is filled; the other two Nations have chosen to currently not fill their seats in protest over issues of tribal sovereignty and rights.[29] The Wisconsin Legislature, the Legislative Assembly of New Brunswick in Canada, and the New Zealand Parliament were allegedly reviewing Maine's indigenous delegate policy for their own adoption (though New Zealand had already established Māori electorates since 1867).[28]

A 2022 Congressional Research Service report on Native representation in Congress

There remain, however, untested questions about the validity of such delegates. If tribal citizens are represented in the House by both a voting member and a non-voting delegate, that might be seen as contrary to the principle of “one person, one vote”. Disagreement on which federally recognized tribes would appoint the relevant delegate could also occur (e.g. the Choctaw delegate might represent only the Choctaw Nation of Oklahoma, say, or also the Mississippi Band of Choctaw Indians; similarly with the Cherokee Nation and the United Keetoowah Band of Cherokee Indians).[30] In 2022, the Congressional Research Service published "Legal and Procedural Issues Related to Seating a Cherokee Nation Delegate in the House of Representatives", addressing these concerns and logistical issues.[31]

On August 25, 2019, the Cherokee Nation formally announced its intention to appoint a delegate, nominating Kimberly Teehee, the tribe's vice president of government relations, as its first delegate.[32] According to the process used for other non-voting delegates, the House of Representatives must vote to formally admit Teehee.[33] Some congressional leaders have expressed concerns about Teehee being appointed by a tribal government rather than elected by tribal members; Teehee has contended that, since the Cherokee Nation is a sovereign nation, her appointment as a delegate should be viewed analogous to an ambassadorship.[24] An ambassadorial view of Native delegates is consistent with prior history of Native envoys to Washington and Maine's state-level tribal delegates.[23][29] Teehee's appointment to the House was not finalized in the 116th Congress and has been reported to have been delayed by the COVID-19 pandemic.[34] Teehee remained unseated as of September 2022,[35] when the Cherokee Nation government reiterated their insistence that Congress seat her.[36]

Expanding (and contracting) voting rights

The positions of non-voting delegates are now a more or less permanent fixture of the House of Representatives, having been supported by Congressional legislation.[37] However, this legislation stipulates that "...the right to vote in the committee shall be provided by the Rules of the House." Under Article I, Section 5 of the U.S. Constitution, the House establishes its operating rules, which allows a majority of the House to change the powers of delegates. Since the 1970s, delegates have served on Congressional committees with the same powers and privileges as members of Congress, including the right to cast votes, but since 1993 their ability to vote on the floor of the House has changed several times.[38]

In 1993, the 103rd Congress approved a rule change that allowed the four delegates and the resident commissioner to vote on the floor of the House, but only in the Committee of the Whole. However, if any measure passed or failed in the Committee of the Whole because of a delegate's vote, a second vote—excluding the delegates—would be taken. In other words, delegates were permitted to vote only if their votes had no effect on a measure's ultimate outcome. This change was denounced by Republicans (all five of the delegates either were Democrats or were allied with the Democrats at the time) as a case of partisanship;[39] the Democrats had lost a dozen House seats in the 1992 elections, and Republicans charged allowing delegates to vote would inflate Democratic vote totals.[40] In 1995, this rule was swiftly reversed by the newly seated Republican majority in the 104th Congress; stripping the delegates, all of whom caucused with the Democrats, of even non-decisive voting privileges.[41] Upon re-gaining control of the House in January 2007, Democrats revived the 1993–1995 status for delegates during both the 110th and 111th Congresses.[42] Republicans again objected, and after taking back control of the House in 2011, revoked the right of delegates to vote in the Committee of the Whole starting during the term of the 112th Congress.[43][44] In 2019, Democrats took back control of the House and delegates have retained the right to vote in the Committee of the Whole since the 116th United States Congress. In a contrast from previous GOP Majorities, Delegate voting in the Committee of the Whole remains in place for the 118th Congress. [45]

Current non-voting members of the U.S. House of Representatives

As of the 118th United States Congress, the six non-voting delegates consist of three Democrats and three Republicans. Jenniffer González, of Puerto Rico, a member of the New Progressive Party in Puerto Rico, belongs nationally to the Republican Party.

Overview of current non-voting members of the House
District Title Incumbent Party House Caucus
Affiliation 		First
elected 		Constituency map
American Samoa at-large Delegate Amata Coleman Radewagen Republican Republican 2014
District of Columbia at-large Delegate Eleanor Holmes Norton Democratic Democratic 1990
Guam at-large Delegate James Moylan Republican Republican 2022
Northern Mariana Islands at-large Delegate Gregorio Sablan Democratic Democratic 2008
Puerto Rico at-large Resident Commissioner Jenniffer González New Progressive Republican 2016
U.S. Virgin Islands at-large Delegate Stacey Plaskett Democratic Democratic 2014

See also

References

  1. ^ "Text searched: FLD003:#1(Rep. Pierluisi Pedro)". Archived from the original on March 4, 2020. Retrieved March 15, 2016.
  2. ^ "Legislation". Archived from the original on March 16, 2016. Retrieved March 15, 2016.
  3. ^ Kitto, Kris (November 3, 2009). "Present: The House's non-voting members find some constructive ways to spend time when their colleagues run to cast votes". The Hill. Retrieved March 23, 2021.
  4. ^ "Delegates and Resident Commissioners". Office of the Clerk of the U.S. House of Representatives. Retrieved July 30, 2015.
  5. ^ 48 U.S.C. § 1715
  6. ^ a b c d e Public Domain This article incorporates public domain material from Betsy Palmer. Delegates to the U.S. Congress: History and Current Status (PDF). Congressional Research Service.
  7. ^ The Northwest Ordinance stated: "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 delegate to Congress, who shall have a seat in Congress, with a right of debating but not voting during this temporary government."
  8. ^ Gilmore 1887, p. 36, 217–218.
  9. ^ Gilmore 1887, p. 222.
  10. ^ "SEVIER, John". United States House of Representatives.
  11. ^ "WHITE, James". United States House of Representatives.
  12. ^ Annals of Congress, vol. 4, 3rd Cong., 2nd sess., November 18, 1794, pp. 884-889. cited in Palmer, ibid.
  13. ^ An act further to regulate the territories of the United States, and their electing delegates to congress, Library of Congress, March 3, 1817
  14. ^ Levinson, Sanford; Sparrow, Bartholomew H. (2005). The Louisiana Purchase and American Expansion: 1803–1898. New York: Rowman and Littlefield Publishers. p. 15.
  15. ^ "111th House Freshmen: Pedro Pierluisi, D-Puerto Rico (AL)". Congressional Quarterly. November 5, 2008. Archived from the original on November 9, 2008. Retrieved November 5, 2008.
  16. ^ Sunia, Fofō I. F. (1998). The Story of the Legislature of American Samoa: In Commemoration of the Golden Jubilee 1948–1998. Pago Pago, AS: Legislature of American Samoa. Pages 234-235. ISBN 9789829008015.
  17. ^ Tarr, David R.; Benenson, Bob, eds. (2012). Elections A to Z (4th ed.). SAGE Publications. p. 165. ISBN 978-0-87289-769-4.
  18. ^ Booker, Brakkton (February 10, 2021). "Stacey Plaskett Is 1st Nonvoting House Delegate To Argue An Impeachment Trial". NPR. Retrieved March 23, 2021.
  19. ^ Donato, Agnes E. (November 19, 2008). "Absentee votes confirm Kilili victory". Saipan Tribune. Archived from the original on February 14, 2012.
  20. ^ Pommersheim, Frank (September 2, 2009). Broken Landscape: Indians, Indian Tribes, and the Constitution. Oxford, England: Oxford University Press. p. 333. ISBN 978-0-19-970659-4. Retrieved January 4, 2019.
  21. ^ Ahtone, Tristan (January 4, 2017). "The Cherokee Nation Is Entitled to a Delegate in Congress. But Will They Finally Send One?". YES! Magazine. Bainbridge Island, Washington. Retrieved January 4, 2019.
  22. ^ Murphy, Sean (August 16, 2019). "Country's largest tribal nation seeks congressional delegate". Muskogee Phoenix. Muskogee, Oklahoma. Retrieved August 24, 2019.
  23. ^ a b "Peter P. Pitchlynn Collection", Western Histories Collection, University of Oklahoma Libraries
  24. ^ a b Casteel, Chris (September 8, 2019). "Teehee hopes for congressional collaboration on seating her as Cherokee Nation delegate". The Oklahoman. Oklahoma City, Oklahoma. Retrieved October 29, 2020.
  25. ^ Evarts, Jeremiah (1829). "William Penn Papers No. 9". Essays on the Present Crisis in the Condition of the American Indians. Boston, Massachusetts: Perkins & Marvin. pp. 33–34. Retrieved October 29, 2020.
  26. ^ Rosser, Ezra (October 17, 2007). "Promises of Nonstate Representatives". The Yale Law Journal. 117. Retrieved October 29, 2020.
  27. ^ Dotson, Deborah (December 15, 2022). "Guest: Why a Cherokee Nation delegate to Congress cannot represent all tribes". The Oklahoman.
  28. ^ a b c d Starbird, S. Glenn Jr. (1983). "Brief History of Indian Legislative Representatives". Maine Legislature. Retrieved January 4, 2021.
  29. ^ a b Moretto, Mario (May 26, 2015). "Passamaquoddy, Penobscot tribes withdraw from Maine Legislature". Bangor Daily News.
  30. ^ Rosser, Ezra (November 7, 2005). "The Nature of Representation: The Cherokee Right to a Congressional Delegate". Boston University Public Interest Law Journal. 15 (91): 91–152. SSRN 842647.
  31. ^ "Legal and Procedural Issues Related to Seating a Cherokee Nation Delegate in the House of Representatives". Congressional Research Service. July 21, 2022. Retrieved October 31, 2022.
  32. ^ Kaur, Harmeet (August 25, 2019). "The Cherokee Nation wants a representative in Congress". CNN. Retrieved November 17, 2022.
  33. ^ Krehbiel-Burton, Lenzy (August 23, 2019). "Citing treaties, Cherokees call on Congress to seat delegate from tribe". Tulsa World. Tulsa, Oklahoma. Retrieved August 24, 2019.
  34. ^ Hunter, Chad (May 10, 2021). "CN leaders view 'dismissive' remarks as teaching moment". Cherokee Phoenix.
  35. ^ Hoskin, Chuck Jr. (September 4, 2022). "Cherokee chief: Our ancestors were promised a delegate in the House. Treaties matter". news.yahoo.com. Retrieved September 5, 2022.
  36. ^ Hernandez, Joe (September 24, 2022). "The Cherokee Nation is renewing its push for a nonvoting delegate in Congress". NPR. Retrieved September 24, 2022.
  37. ^ Section 891, of Title 48 of the U. S. Code
  38. ^ Hudiburg, Jane A. (March 1, 2022). Delegates to the U.S. Congress: History and Current Status (Report). Congressional Research Service.
  39. ^ Wasniewski, Matthew A.; Kowalewski, Albin; Turner O'Hara, Laura; Rucke, Terrance (eds.). "Strength in Numbers, Challenges in Diversity" (PDF). Hispanic Americans in Congress 1822–2012. Washington, D.C.: Office of the Historian and Office of the Clerk, House of Representatives. p. 496.
  40. ^ Krauss, Clifford (December 10, 1992). "House Delegates Get New Powers". The New York Times. Vol. CXLII, no. 49, 176. p. A22 – via TimesMachine.
  41. ^ H.Res. 6, 104th Congress
  42. ^ H.Res. 78, 110th Congress
  43. ^ H.Res. 5, 112th Congress
  44. ^ Newhauser, Daniel (January 5, 2011). "House Delegates Stripped of Vote". Roll Call. Retrieved January 5, 2011.
  45. ^ McPherson, Lindsey (January 4, 2019). "House adopts rules package with few Democratic defections over PAYGO provision". Roll Call. CQ Roll Call. Retrieved February 21, 2019.

Further reading

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