The Quorum Clause

A Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

—Seth Barrett Tillman

Introduction

The Constitution requires that each house of Congress have a majority of members in attendance to conduct business. If there is less than a majority in attendance, the available members (even if less than a quorum) can adjourn from day to day. And the available members (even if less than a quorum) may, if authorized by a prior statute or rule, compel absent members to attend. The Framers adopted a majority quorum rule rather than a submajority or supermajority rule. They also rejected a quorum rule that would have allowed each house to set its own quorum rule. As a result, a minority of members cannot easily frustrate the ability of a house to pass legislation or conduct other business—assuming the majority actively attends. This majority rule departed from the practice in the English House of Commons and some colonial legislatures, which allowed a submajority to make a quorum. Under longstanding practice, each house is “presumed” to have a quorum during a session unless a member or the presiding officer objects.¹ As Thomas Jefferson explained, if “it is observed that a quorum is not present, any member may call for the House to be counted, and being found deficient, business is suspended.”2 However, at the start of a two-year Congress or of a subsequent session, House practice has customarily required a majority’s presence, absent any reliance on a presumption of a continuous quorum from any prior Congress or prior session.² And obviously, when members attended the first session of the First Congress, there could be no presumption of a continuous quorum from any prior session.

History Before 1787

The size of the House of Commons has varied over time. In the early seventeenth century, the English House of Commons had between 450 and 500 seats.³ In the late seventeenth century, with the exception of the Cavalier Parliament, the English House of Commons had between 500 and 560 seats.⁴ In 1641, the English House of Commons adopted, by order, a sub-majority quorum rule of forty members.⁵ That order remains in force in the Commons.⁶

Colonial practice sometimes followed English and subsequent British parliamentary precedents, but it was uneven, as was practice among the American states after the Revolution. Some state constitutions, like Maryland’s and North Carolina’s, had a majority quorum rule.⁷ Other Revolutionary-era state constitutions, including Virginia’s, had no express quorum rule at all,⁸ which would have left the issue to be settled by statute, rule, or perhaps by custom.

Under the Articles of Confederation, there was no express quorum rule. Each state delegation voted separately; individual delegates only had a vote within their state’s delegation. Moreover, to vote, a state delegation had to be represented by between two and seven delegates.⁹ As a result, a state delegation might be unable to vote: because none of its delegates were present; or because only one of its delegates was present; or because its delegates were evenly divided. The Articles adopted several supermajority rules controlling much of the most important business before Congress. For example, under Article IX, support from nine of the thirteen state delegations was necessary to appoint a commander in chief of the army or navy.¹⁰ Article XI generally required support from nine state delegations to admit new territory to the Union.¹¹ Article X controlled the structure and voting rules for the standing committee that was empowered to act for the Articles Congress when it was in recess.¹² Other business (except for an adjournment) required the support of an absolute majority: seven state delegations. This was an absolute majority voting rule, and not a quorum rule per se. For example, on June 19, 1788, a motion was reported as lost, with five ayes, two noes, one divided state delegation, and with four other delegations represented by a single member, and Delaware entirely absent.¹³

These provisions, and the supermajority provisions in particular, functioned much as a traditional quorum rule functions. These rules allowed dissenting minorities of state delegations to stop public business merely by physically absenting themselves from the floor of the legislature and may well have contributed to the perceived weakness, ineffectiveness, and imbecility of the Articles government. When the Framers showed up for the Philadelphia Convention, supermajority quorum rules were likely disfavored.

The Constitutional Convention

At the Philadelphia Convention, a variety of views were expressed in regard to legislative quorums. On August 6, 1787, the Committee of Detail returned a draft Constitution with a majority quorum provision: “In each House a majority of the members shall constitute a quorum to do business; but a smaller number may adjourn from day to day.”¹⁴ This rule is a floating quorum: the size of the quorum changes or floats depending on the number of members. This measure was debated on August 10.¹⁵ Gouverneur Morris of Pennsylvania proposed two fixed quorum rules: thirty-three members for the House and fourteen for the Senate. The choice of thirty-three and fourteen would have been a majority quorum rule under the assumption that all thirteen states ratified the Constitution and sent timely members to the First Congress. The first House would have had sixty-five authorized members, and the first Senate would have had twenty-six authorized members for thirteen states. But when the First Congress met in 1789, only eleven of thirteen states had ratified the Constitution. In those circumstances, had the Morris proposal been in effect, a fixed quorum of thirty-three House members and fourteen Senate members would have been a supermajority quorum. Likewise, as new states entered the Union beyond the original thirteen states, had the Morris proposal been in effect, a quorum of thirty-three House members and fourteen Senate members would have been a submajority quorum rule. Perhaps unsurprisingly, Morris’s proposal failed by a vote of two to nine.

The August 10 debate revealed other divisions. Nathaniel Gorham of Massachusetts favored a submajority quorum rule that would have allowed each house to conduct business with less than fifty percent of its members present. Gorham argued that a majority quorum rule could cause a “great delay . . . in business, and great inconvenience from the future increase of numbers.”¹⁶ In other words, a majority quorum rule would be difficult to satisfy as the nation expanded and new members had to travel greater distances to the nation’s capital. John Francis Mercer of Maryland supported, in principle, a submajority quorum rule, but he would have let Congress fix the quorum. In the British parliament, Mercer observed, “the requisite number is small & no inconvenienc[e] has been experienced.” Mercer believed that if the Constitution fixed a majority or supermajority quorum rule, it would “[em]power . . . a few [members] by [their] seceding [from the legislative chamber] at a critical moment to introduce convulsions, and endanger the Government.”¹⁷

George Mason of Virginia opposed a submajority quorum.¹⁸ A submajority quorum rule, he said, would allow members from the “Central States,” who lived close to the capital, to “meet[] earlier” and stay longer during the session. These centrally located members could “carry such measures as they pleased.” Members from “distant” states might arrive later and have to leave earlier. Rufus King of Massachusetts proposed a complex alternative quorum rule using the fixed numbers proposed by Morris as a floor but otherwise leaving the legislature with discretion to raise that floor.¹⁹

These and other proposed amendments to the majority quorum rule all failed to garner support, but one amendment did pass: Oliver Ellsworth of Connecticut indicated that the threat of “secessions may be guarded against by giving to each House an authority to require the attendance of absent members.”²⁰ In these debates, “secessions” related to members’ coordinating their failing to attend legislative sessions in order to frustrate legislative business and to accomplish political ends. James Wilson of Pennsylvania supported Ellsworth’s position. Edmund Randolph and James Madison, both of Virginia, put forward a motion providing that a submajority of each house “(may) be authorized to compel the attendance of absent members in such manner & under such penalties as each House may provide.”²¹ This additional safeguard against the power of a minority to abuse the quorum process was approved almost unanimously, and the proposed majority quorum rule as amended passed without recorded dissent.

Commentary

In Federalist No. 58, Madison defended the majority quorum provision and warned that under a supermajority provision, “[i]t would be no longer the majority that would rule; the power would be transferred to the minority.” Under a supermajority quorum rule, absent members could frustrate legislative business and “facilitate and foster the baneful practice of secessions.” In Federalist No. 59, Hamilton wrote that a quorum of the Senate would be sixteen members. However, Hamilton erred; if all thirteen states ratified the Constitution, there would be twenty-six Senators, and a quorum would be fourteen. In any event, the Constitution did not impose a fixed quorum number.

Justice Joseph Story praised each house’s power to compel attendance. He explained that “[i]t was a defect in the articles of confederation, sometimes productive of great public mischief, that . . . no power of compelling the attendance of the requisite number [for enacting a resolution] existed.”²²

The Quorum Rule in the First Congress

In 1789, the First Congress was scheduled to convene in the then-capital New York, to begin the business of the government under the new Constitution. However, there would be a delay before the House and Senate were properly constituted: A quorum of members had yet to arrive. During those early days, the House and Senate could not select their presiding officials. Moreover, only eleven of the original thirteen states—all except Rhode Island and North Carolina—had ratified the Constitution. Among the eleven ratifying states, fifty-nine House seats and twenty-two Senate seats were authorized.²³ The House and Senate would not organize until thirty Representatives and twelve Senators were in attendance.

Based on these twin precedents, some scholars have assumed that the Quorum Clause’s “majority” language refers to a majority of all authorized seats, and not to a majority of actual members.²⁴ For example, where an election for a seat is not held, or when an election is held but the member-elect fails to attend the house to which he was elected or attends without recognized credentials, the number of authorized seats remains constant, but the number of actual members is reduced by one. Under the former reading, that member’s seat would still be part of the denominator for which a majority was necessary to make a quorum. In short, under this interpretation of the Quorum Clause, a quorum requires the attendance of members from a majority of all authorized seats, whether those seats have been filled by election or not. Under the alternate reading, if a state fails to hold an election for a seat, then that seat does not count towards the denominator. Thus, a majority quorum would be determined as a majority of actual members, and not a majority of all authorized seats.

Although these two precedents from the first session of the First Congress tell one story, the second session of the First Congress tells a somewhat different one. The first session ended on September 29, 1789. The second was scheduled to begin on January 4, 1790.²⁵ On November 21, 1789, during the recess between the two sessions, North Carolina ratified the Constitution, and the North Carolina legislature proceeded to elect its two Senators over the course of November and December.²⁶ In short, North Carolina’s ratification and the election of its senators all took place well prior to the start of the second session. By January 1790, there would be twenty-four authorized Senate seats. On January 4, 1790, when the second session began, ten Senators were in attendance. The Senate’s journal reflects an absence of a quorum.²⁷ An eleventh Senator was in attendance on January 5, and a twelfth was present on January 6 when the Senate first recognized the existence of a quorum during the second session.

At this juncture, however, there were twelve ratifying states and twenty-four authorized Senate seats. If the Constitution’s majority quorum provision referred to the number of authorized seats, a quorum should have been thirteen Senators, not twelve. This Senate precedent reflects what would later be called a “floating quorum” rule.²⁸ A floating quorum rule does not count the number of authorized seats; it counts the number of actual members whose credentials have been accepted by the legislative body. Thus, the “majority” requirement floats upwards as new members attend for the first time. In other words, as each new state’s members would show up to Congress for the first time, the denominator for purposes of the quorum would increase. When the quorum was established in the second session, the members from North Carolina had not yet presented their credentials. Therefore, the North Carolina Senators were not counted for purposes of the denominator. By contrast, the majority requirement would float downward, and the denominator would decrease as members were lost to the chamber because of death, resignation, expulsion, etc.

How a Quorum Is Determined

Generally, the presiding officer or a member of each house can, at his discretion, call for a vote to determine the presence or absence of a quorum.²⁹ That vote would determine if enough members are in attendance to transact business. But in the absence of such a quorum call, the number of members present could be determined in another way. Whenever the legislative body is divided by casting votes, for example, those votes may themselves reveal the presence of a quorum.

It is easy enough to tally the members’ ayes and noes, as well as the other members who vote merely present. Speaker Thomas Reed’s nineteenth-century procedural reforms empowered the House to count members who are physically present in the House, even if they have refrained from voting, as present for the purpose of determining the presence of a quorum.³⁰ The Supreme Court upheld that procedure in United States v. Ballin (1892).³¹ If the total number of votes cast is fewer than the minimum for a quorum, the motion has failed. A federal district court has observed that “once a vote reveals that a quorum is lacking, the House and Senate must either obtain a quorum or adjourn—they cannot ignore the demonstrated absence by unanimous consent.”³² The available members can invoke a prior rule or statute to compel absent members to attend, thereby facilitating the House’s reaching a quorum.

Judicial Precedent

Federal courts traditionally have been reluctant to declare unconstitutional congressional proceedings based on a lack of quorums or other asserted procedural defects relating to bill passage, even when those alleged defects are grounded in the Constitution. The enrolled bill rule bars courts from examining alleged procedural defects in the passage of a bill. Instead, the rule cautions courts to rely on the signatures of each chamber’s presiding officer on the face of the enacted or engrossed bill as an assurance that all constitutional requirements have been met.

This rule was tested in the wake of the COVID-19 pandemic. In May 2020, the House of Representatives authorized remote proxy voting.³³ Under this rule, one member could authorize a second member to vote on the first member’s behalf and in the first member’s absence. The House rules permitted both members to count toward the House’s quorum. As a result, a member would not need to be physically present in the chamber to cast a vote. House Republicans sought declaratory and injunctive relief against the rule’s enforcement. Their lawsuit was dismissed, and that district court’s decision was affirmed on appeal.³⁴ In this case, the plaintiffs did not allege that any particular bill’s enactment was unconstitutional.

In December 2022, the House voted on the Pregnant Workers Fairness Act. When the House voted, a quorum of members was not physically present. The House’s position was that a quorum existed under its proxy voting rule. The State of Texas challenged the enforcement of this bill on the grounds that the House voted on the bill without a quorum being present. In 2024, a federal district court ruled that a member must be physically present in the legislative chamber to count toward a quorum.³⁵ Here, the number of members who were physically present when the bill was passed by the House was less than a quorum.

Open Questions

• Is it possible to reconcile the competing precedents established at the start of the first and second sessions of the First Congress with regard to the quorum rule? Which is the “correct” one? Both precedents are consistent with the Constitution’s text. Could it be that both precedents are correct with one concept of “majority” applicable at the start of each two-year Congress and another applicable on all other occasions?
• How much deference (if any) must the other branches of government give to the determination by a house’s presiding officer that a quorum was present?
• How frequently must the presiding officer permit members to object to ongoing proceedings based on the alleged absence of a quorum? Repeated quorum objections are dilatory: They unfairly deny the elected majority the power to govern. On the other hand, a presiding officer’s refusal to recognize a member’s quorum objection, particularly if the presiding officer no longer has a working majority, allows business to go forward in violation of the minority’s (and, arguably, the public’s) constitutional rights.
• Both houses, in the absence of a member’s objection, will routinely hold sessions and conduct business in the absence of a “quorum” (that is, without a majority of members being physically present). Does the Speaker or do members have a duty to object to proceedings if they believe that a quorum is absent?³⁶ Jefferson’s Manual suggests that the answer is “no”; objections are discretionary, and the presence of a majority quorum, once established, is presumed to continue.³⁷
• Can a member count toward the quorum for purposes of voting if he is participating in the proceedings by electronic video link? Here the issue is not proxy voting; it is whether physical presence in the legislative chamber is required by the Quorum Clause in circumstances where the member can individually cast his vote, debate, and otherwise interact with other members by electronic means. There is no developed case law on this point, but one jurist has suggested that this practice is constitutional.³⁸

1. 6 Cannon’s Precedents, §§ 564, 624. ↩︎
2. Texas v. Garland, 719 F. Supp. 3d 521, 591–92 (N.D. Tex. 2024). ↩︎
3. The Composition of the House of Commons: 1604–1629, The History of Parliament, https://perma.cc/W9JN-A2AS. ↩︎
4. The Composition of the House: 1660–1690, The History of Parliament, https://perma.cc/CRP7-SW9F. ↩︎
5. Charles Henry Parry, The Parliaments and Councils of England 345 (London, J. Murray 1839); William Paul White, The History and Philosophy of the Quorum as a Device of Parliamentary Procedure (Master of Arts, University of Montana 1967), https://perma.cc/Y59W-LJMT; 2 Story’s Commentaries § 832. ↩︎
6. Quorum of the House, Erskine May, https://perma.cc/HPX7-D42N. ↩︎
7. Md. Const. of 1776, arts. VIII & XX; N.C. Const. of 1776, art. XLVI. ↩︎
8. The Constitution [of Virginia] as Adopted by the Convention, [29 June 1776], Founders Online, https://perma.cc/5H3N-BHT9. ↩︎
9. Articles of Confederation, art. V, § 2. ↩︎
10. Id. art. IX, § 6. ↩︎
11. Id. art. XI. ↩︎
12. Id. art. X. ↩︎
13. 34 J. Cont. Cong. 1774–1789: January 21, 1788, to March 2, 1789, at 242–43 (June 19, 1788) (Roscoe R. Hill, ed., Washington, GPO 1937). ↩︎
14. 2 Farrand’s 180. ↩︎
15. Id. at 251–54. ↩︎
16. Id. at 252. ↩︎
17. Id. at 251. ↩︎
18. Id. at 251–52. ↩︎
19. Id. at 251–53. ↩︎
20. Id. at 253. ↩︎
21. Id. at 253–54. ↩︎
22. 2 Story’s Commentaries § 836. ↩︎
23. Art. I, § 3. ↩︎
24. John Bryan Williams, How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress, 48 Wm. & Mary L. Rev. 1025, 1051–57 (2006). ↩︎
25. Dates of Sessions of the Congress, United States Senate, https://perma.cc/47HD-T5HA. ↩︎
26. HAWKINS, Benjamin, 1754–1816, https://perma.cc/QP5C-K8CJ; JOHNSTON, Samuel, 1733–1816, https://perma.cc/4DGT-2FP5. ↩︎
27. S. Jour., 1st Cong., 2d Sess. 101 (Jan. 4, 1790). ↩︎
28. 26 Cong. Rec. 2006 (1894). ↩︎
29. Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 28 Tex. Rev. L. & Pol. 350, 372, 378–80 (2024). ↩︎
30. House Rule XX 4(a), 6(b). ↩︎
31. 144 U.S. 1 (1892). ↩︎
32. Garland, 719 F. Supp. 3d at 592–93. ↩︎
33. John Bresnahan, Pelosi Announcement Allows Proxy Voting on House Floor Next Week, Politico (May 20, 2020), https://perma.cc/4H9A-KY32. ↩︎
34. McCarthy, v. Pelosi, 5 F.4th 34, 37 (D.C. Cir. 2021), affirming 480 F. Supp. 3d 28 (D.D.C. 2020), cert. denied, 142 S.Ct. 897 (2022). ↩︎
35. Garland, 719 F. Supp. 3d at 592–93. ↩︎
36. Blackman & Tillman, supra at 376–378. ↩︎
37. Jefferson, supra § VI. ↩︎
38. Joseph R. Quinn, COVID-19, Constitutions, and a Connected World: Assessing the Constitutionality of Remote Voting in Legislatures, 100 Neb. L. Rev. 549 (2021). ↩︎