Non-voting members of the United States House of Representatives
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. There are currently six non-voting members: a delegate representing the District of Columbia, a resident commissioner representing Puerto Rico, and one delegate for each of the other four permanently inhabited US territories: American Samoa, Guam, the Northern Mariana Islands, and the US 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, while the resident commissioner of Puerto Rico is elected every four years.
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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. They receive compensation, benefits, and franking privileges (the ability to send outgoing U.S. mail without a stamp) similar to full House members. Since 1993, the rules governing the rights of a non-voting member have changed three times, and current delegates—along with the resident commissioner—enjoy privileges that they did not have previously.
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. 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". 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. He remained a member of the House until March 3, 1791, when he was appointed brigadier general of the militia.
On September 3, 1794, James White was elected by the Southwest Territory, which contained the former Washington District, to be their delegate to Congress. 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.
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." As he was not a member, he was not directed to take the oath, though every delegate after him has done so. He was also extended franking privileges, which allowed him to send official mail free of charge, and compensation at the same rate as members.
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.
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.
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 have residents with the rights of or to U.S. citizenship. Territories can secede from the United States with the consent of Congress, and in the case of the Philippines, they have.
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.
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.
|New Mexico Territory||1851||1912|
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.
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, American Samoa Senate President Salanoa introduced Senate Bill 54 in order to create the Office of the Delegate at Large to Washington, DC. This was approved by Governor Owen Aspinall on August 8, 1969. Its first delegate, A. U. Fuimaono, was elected in 1970. Fuimaono ended his term in order to unsuccessfully run for Governor of American Samoa. Former speaker of the House and Senate President HC Lutali became the territory's second delegate to Washington. Fofō I. F. Sunia was elected the third delegate at large when Lutali decided not to seek re-election in 1978. Sunia went to Washington knowing his term would be limited to two years as the U.S. president had established a non-voting seat for American Samoa in the United States House of Representatives. However, Sunia was elected to American Samoa's first Congressional seat in 1981 and served until 1988. He was succeeded by Eni Faleomavaega from 1989 to 2015. On January 3, 2015, Amata Coleman Radewagen became America Samoa's both first female delegate and their first Republican elected delegate.
District of Columbia
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, who served in that position between March 23, 1971 and January 3, 1991, when Eleanor Holmes Norton was elected. Norton continues in that position.
US 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.
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 elected first in the mid-1960s and had been seeking a place in the House since then.
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 established by Article V of the Constitution of the Northern Mariana Islands for the purpose of representing the CNMI in the United States capital 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.
Native American treaty-right delegates
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. The Choctaw tribe has never appointed a delegate to Congress and the Cherokee had not until 2019. 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.
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.
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). 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). Unlike the situation at the federal level, Maine's state-level tribal delegates are established by state law rather than treaties. 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. 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).
There remain, however, untested questions about the validity of such delegates. One is violating one person, one vote if tribal citizens are represented in the House by both a voting member and a non-voting delegate. Another is which federally recognized tribes would appoint the relevant delegate: 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.
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. According to the process used for other non-voting delegates, the House of Representatives must vote to formally admit Teehee. 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. An ambassadorial view of Native delegates is consistent with prior history of Native envoys to Washington and Maine's state-level tribal delegates. Teehee's appointment to the House has not been finalized as of May 2021 and has been reported to have been delayed by the COVID-19 pandemic.
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 (see Section 891, of Title 48 of the U. S. Code). However, this legislation stipulates that "...the right to vote in the committee shall be provided by the Rules of the House." Hence, the House majority could, without consulting the Senate or the president, weaken the delegates.
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; the Democrats had lost a dozen house seats in the 1992 election, and this change effectively reduced the impact by half. In 1995, this rule change was reversed by the 104th Congress, stripping the delegates of even non-decisive votes. The reversal was in turn denounced by Democrats (all five of the delegates either were Democrats or were allied with the Democrats at the time) as a case of partisanship; the change was made after Republicans gained control of the House for the first time in 40 years. In January 2007, it was proposed by Democrats in the House that the 1993–1995 procedure be revived. Delegates had this right during the 110th and 111th Congresses. Republicans again objected, and when their party gained control of the House during the 112th Congress, the right of delegates to vote in the committee of the whole was again removed. When Democrats regained control in the 116th United States Congress, they again reinstated the right of delegates to vote in the committee of the whole.
Delegates have always retained the right to vote in congressional committees and in conference committees (see House Rule III, 3[b]). Conference committees include representatives from both the House and Senate. These committees work to compromise and reconcile conflicts between House and Senate bills.
Current non-voting members of the U.S. House of Representatives
As of the 116th United States Congress, the six non-voting delegates consist of three Democrats, two Republicans and an independent. The independent, Gregorio Sablan, caucuses with the Democratic Party. Jenniffer González, of Puerto Rico, a member of the New Progressive Party in Puerto Rico, belongs nationally to the Republican Party.
|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||Michael San Nicolas||Democratic||Democratic||2018|
|Northern Mariana Islands at-large||Delegate||Gregorio Sablan||Independent||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|
- Shadow congressperson
- US State and territorial legislatures with non-voting delegates:
- Maine Legislature: Maine House of Representatives (Non-voting tribal delegates)
- American Samoa Fono: American Samoa House of Representatives (Swains Island)
- "Text searched: FLD003:#1(Rep. Pierluisi Pedro)". Retrieved March 15, 2016.
- "Legislation". Archived from the original on March 16, 2016. Retrieved March 15, 2016.
- 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.
- "Delegates and Resident Commissioners". Office of the Clerk of the US House of Representatives. Retrieved July 30, 2015.
- 48 U.S.C. § 1715
- This article incorporates public domain material from the Congressional Research Service document: Betsy Palmer. "Delegates to the U.S. Congress: History and Current Status" (PDF).
- 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."
- Gilmore 1887, p. 36, 217–218.
- Gilmore 1887, p. 222.
- "SEVIER, John". United States House of Representatives.
- "WHITE, James". United States House of Representatives.
- Annals of Congress, vol. 4, 3rd Cong., 2nd sess., November 18, 1794, pp. 884-889. cited in Palmer, ibid.
- An act further to regulate the territories of the United States, and their electing delegates to congress, Library of Congress, March 3, 1817
- Levinson, Sanford; Sparrow, Bartholomew H. (2005). The Louisiana Purchase and American Expansion: 1803–1898. New York: Rowman and Littlefield Publishers. p. 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.
- 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.
- Tarr, David R.; Benenson, Bob, eds. (2012). Elections A to Z (4th ed.). Sage Publications. p. 165. ISBN 978-0-87289-769-4.
- Booker, Brakkton (February 10, 2021). "Stacey Plaskett Is 1st Nonvoting House Delegate To Argue An Impeachment Trial". NPR. Retrieved March 23, 2021.
- Donato, Agnes E. (November 19, 2008). "Absentee votes confirm Kilili victory". Saipan Tribune. Archived from the original on February 14, 2012.
- 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.
- 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.
- Murphy, Sean (August 16, 2019). "Country's largest tribal nation seeks congressional delegate". Muskogee Phoenix. Muskogee, Oklahoma. Retrieved August 24, 2019.
- "Peter P. Pitchlynn Collection", Western Histories Collection, University of Oklahoma Libraries
- 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.
- 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.
- Rosser, Ezra (October 17, 2007). "Promises of Nonstate Representatives". The Yale Law Journal. 117. Retrieved October 29, 2020.
- Starbird, Jr., S. Glenn (1983). "Brief History of Indian Legislative Representatives". Maine Legislature. Retrieved January 4, 2021.
- Moretto, Mario (May 26, 2015). "Passamaquoddy, Penobscot tribes withdraw from Maine Legislature". Bangor Daily News.
- 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.
- "The Cherokee Nation wants a representative in Congress". www.msn.com.
- 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.
- Hunter, Chad (May 10, 2021). "CN leaders view 'dismissive' remarks as teaching moment". Cherokee Phoenix.
- H.Res. 78, 110th Congress
- H.Res. 5, 112th Congress
- Newhauser, Daniel (January 5, 2011). "House Delegates Stripped of Vote". Roll Call. Retrieved January 5, 2011.
- 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.
- Gilmore, James (1887). John Sevier As a Commonwealth-builder: a Sequel to The Rear-guard of the Revolution. New York: D. Appleton and Company.