As we recently noted, the new Congress has declared that the Resident Commissioner from Puerto Rico will be allowed to cast votes in the House when it constitutes itself as the Committee of the Whole.
Why is this relevant for our democracy?
To understand our system of democratic federalism, it is fundamental to know that only formal legally binding votes on the floor of the House of Representatives and the U.S. Senate have any fully meaningful constitutional effect. It is voting on final passage of a bill by each House of Congress that constitutes representation of citizens in a completed exercise of the power vested in Congress by Article I of the Constitution.
Passage of a bill or resolution in an established form on final vote singularly and exclusively constitutes a culminated act of the House. If the Senate and House both approve passage of a final bill that measure then becomes an “act of Congress.” Only an act of Congress triggers the duty of the President to either sign the bill passed by Congress so that it becomes a law, or veto the bill passed by Congress subject to the Congressional power to override a veto and make the bill an enacted law.
Only enactment of an act of Congress signed by the President in an exercise of the Chief Executive’s co-equal power to enact a law, or enactment of the law by override of a veto, triggers the power of the federal courts as the third co-equal branch to interpret what a law means and determine whether a law is constitutional. As such, only voting on final passage of a bill is an act of Congress that constitutes an exercise of the right of representation and “consent of the governed” under the Declaration of Independence and the Constitution.
A vote in a working committee of one House of the Congress allowed by the voting members is permissive, not a right but a privilege granted by discretion of the House, and continued or ended at the pleasure of the members who have the actual right to vote in the House. The right to voting representation exists only for members elected by citizens in a State of the Union.
Resident Commissioners from Puerto Rico, like non-voting Delegates from the other four territories classified in the same unincorporated status as Puerto Rico, can claim “almost” as much influence as “real” members of the House of Representatives. After all, it is true that territorial representatives vote in the committees where most of the work on a law takes place, and as such can influence the contents of a law before it comes to a final vote on the floor of Congress.
Most committees have limited jurisdiction over specified subject matter (i.e. defense, budget, etc.), and after a committee works on a bill it is reported to the full House to be voted on and approved or disapproved by an act of the House. The “Committee of the Whole” is a House committee that has general jurisdiction and often acts as the final committee to work on a bill and report it to the House for a final vote on the floor.
However, this ability to have political influence in the deliberations of a working committee with limited subject matter jurisdiction is an administratively and statutorily allowed privilege, not a constitutional right of representation. That is why the House is unwilling to give the territorial representatives an actual and binding vote in the House when it convenes itself as the Committee of the Whole exercising general jurisdiction on final approval of a bill that will then be reported to the House and voted on as an act of the House.
A bill approved by a working committee can by reported to the House and come to the floor based on a committee vote of approval in which territorial representatives participated, but that is a report by a committee with limited jurisdiction for consideration by the full House. The Committee of the Whole is the full House acting as a committee and its report to the House is an act of the entire body.
That is the context in which territorial representatives have sometimes been given a vote that only counts if it doesn’t really count. As a general rule it has been when the Democratic Party has a majority in the House that the privilege of voting in the Committee of the Whole has been granted, subject to nullification if territorial votes would decide the issue. Non-voting representatives generally express appreciation for the sense of “dignity” and “respect” this symbolic gesture affords.
Republican majority leadership in the House has generally opposed a symbolic vote in the Committee of the Whole as constitutionally more illusory, creating a false narrative of empowerment and democratization that is denied to unincorporated territories by the Constitution. Even fully incorporated territories in transition to statehood are denied constitutional voting rights prior to admission as States of the Union. As such, some argue a vote that is subject to rescission at will if it makes a difference is a political “gimmick” to make the status quo for unincorporated seem to be something politically or even constitutionally than what it is under our system of federalism.
That is because voting in federal elections for representation in Congress is a right of national citizenship that can be exercised only through citizenship in a State. Members of Congress represent citizens of the State in which they were elected, and the right to vote on an act of the House that is also an act of Congress is derived exclusively from election to represent citizens of a State.
A vote to make a federal law by a member of the House who does not represent the citizens of a State would nullify the vote of a member of the House who does represent citizens of a State. The U.S. is a national federation of States only, not a federation of State and territories. The full right of government by consent is not a privilege of national citizenship, it is a right of national citizenship secured only through exercise of the rights of State citizenship.