mr. speaker , i strongly oppose the radical new provision included in this rules package resolution which would violate the constitution by allowing the speaker and a small group of members to usurp the powers of a majority of the house and act with only a `` provisional quorum '' instead of the real thing . 
the proposal would deny the plain language of section 5 of article i of the constitution and create a new category of quorum -- a `` provisional quorum '' -- which the constitution expressly forbids . 
it destroys the very idea of the quorum . 
it would also demolish a 99-year-old precedent , based on the constitution , that a quorum of the house consists of a majority of the membership chosen , sworn , and living . 
for each house member deprived of the right to exert an impact on the work of the house , either through physical presence in or absence from the chamber , the approximately 600 , 000 persons represented by each member would be deprived of their rights to democratic representation in the legislative body structured to be closest to the american people . 
this proposal transfers the rights of those `` closest to the people '' to those closest to the house floor . 
the proposal takes the guise of a rules change which the house has no power to pass , since the constitution determines what kind of body the house is , and what it can -- and can not -- do . 
under this proposal , a majority of members of the house could be alive and well and fully cognizant , but unable to reach the floor , while the few who are present could usurp their authority and the powers of the house . 
article i , section 5 of the constitution states that a quorum consists of a majority , and , in the absence of a majority , all that the remaining minority of members of the house can do is either adjourn from day to day or vote to compel the attendance of absent members . 
there are no other options -- no matter how inconvenient that fact may be for any faction on the floor of the house during a time of emergency . 
the fact that the constitution authorizes a minority to compel the attendance of the absentees clearly indicates that the absentees are needed to conduct business . 
the constitution does not guarantee that a minority of the house will necessarily succeed in compelling the attendance of absent members to create a constitutional quorum . 
and such a result could indeed cause a crisis , which h. res. 5 would do nothing to remedy . 
unfortunately , during the last congress the house refused to make serious progress toward ensuring continuity of government . 
let 's consider how the plan before us today actually might operate . 
suppose that , in the aftermath of a catastrophic emergency which caused mass casualties and disrupted transportation and communications nationwide , a presiding officer existed in the house who might either be the speaker or another member of the house acting as `` speaker pro tempore '' from a list of names left by a deceased speaker . 
suppose that the presiding officer decided , if a quorum of the majority of members failed to appear within a specified time period , that members who were n't present on the house floor or any other designated place of meeting ceased to be members for purposes of determining a quorum . 
suppose the rump minority of members who had managed to reach the floor wanted to pass major legislation , including a declaration of war or authorization for use of military force , send constitutional amendments to the states for ratification , expel members from their seats , or elect a new speaker to become acting president of the united states , all using a `` provisional quorum '' of one-half of the members present , plus one . 
could they do these things ? 
the proposed rule says they could . 
the constitution says they could not . 
the resolution gives the member presiding the effective power to temporarily define out of existence those members who do n't respond to a specified series of quorum calls . 
these members ' seats would not be considered vacant , but they would fall into a kind of extra-constitutional limbo until the missing members -- or a majority of the total membership -- reappeared in the house . 
it is even possible that some states might seek to replace members who do not answer the `` provisional quorum '' call in the house by ordering special elections even though the members might be known to be alive . 
all members are equal under the constitution , and the right to membership in this house is not determined by a speaker , speaker pro tempore , or a rump of a minority of the body . 
it is determined by a vote of the people , and only a constitutionally constituted house may exercise the power to determine the qualifications of its members and whether they have been duly elected . 
the supreme court has ruled that the house may not add qualifications for membership beyond those expressly stated in the constitution . 
if a member has been duly elected and taken the oath , he remains a member , and can only be removed through resignation , or through expulsion . 
there is no constitutional requirement that a member must appear on the floor to maintain membership , or that house membership can somehow lapse . 
it is surprising that some who only last year during debate on the `` continuity of representation act '' , h.r. 2844 , spoke eloquently about the status of a house consisting only of members elected by the people are now supporting a proposal to define those elected members out of existence . 
members who are trapped at an airport because the transportation system is inoperative , for example , do not simply cease to exist , nor can their powers be vested in other members , willingly or not . 
their absence has potential consequences , including the inability of the house to act until the collective body is `` assembled '' again , as the constitution requires . 
the resolution would also do an end run around the issue of `` disability '' , a matter not addressed in the constitution and one which requires a constitutional amendment to resolve , as the 25th amendment did in the case of the president . 
disabled members -- whom we might describe as those either physically injured or mentally incapable so as to be incapable of participating in the work of the house -- have the same status as those who are fully functional . 
the constitution makes no mention of disabled members , but it does not give the house the power to pretend they do n't exist . 
the house has never expelled or otherwise attempted to remove a sitting member on the grounds of disability . 
proponents of the proposal before us today claim to address the problem of incapacitated members , but only by effectively ignoring it . 
under the provisional quorum rule , these members would presumably not be able to appear on the floor and would be automatically excluded from the provisional quorum . 
it 's a very convenient solution to the disability problem , though blatantly unconstitutional . 
the house could adopt the provisional quorum plan as a house rule if the constitution were amended to authorize it to do so ; however , the constitution does not . 
the argument that the house is somehow exercising a constitutional power to make its own rules is also spurious . 
the house may only make rules which the constitution permits it to make . 
the house may not reinvent itself at will as a different kind of legislative body by pretending that it is simply changing its rules . 
at the very least , the house should debate the provisional quorum issue as a separate resolution , following hearings by the rules committee , with the speaker in the chair to signal the historic nature of the debate and the radical action proposed to be taken . 
burying the issue within this resolution with other controversial rule changes is an outrage . 
the 108th congress proved to be a huge disappointment because of its failure to effectively address many issues involving the stability of our structure of government , deficiencies brought to the forefront by the september 11 attacks , as well as a disturbing tendency to paper over controversies with legislation which fails to substantively address the problem . 
for example , the house rejected a constitutional amendment offered by representative baird of washington which would have reconstituted the house quickly through temporary appointments , pending special elections , if a large number of members were killed . 
i had introduced a different version of the proposal , h.j. res. 89 . 
members opposed to the concept -- which is admittedly extremely controversial -- refused to allow real hearings and debate . 
even though prospects for passage of a constitutional amendment were extremely slim , a substantial debate would have served to educate the congress and the american people on the importance of these issues , and perhaps provide impetus in a search for alternatives . 
a major effort like this has to start somewhere . 
instead , the house passed , but the senate subsequently did not consider , h.r. 2844 , the `` continuity of representation act '' , which created an unrealistically fast , unfair , undemocratic and unworkable scheme to fill vacant house seats through a mandatory national 45-day special election period . 
this bill was referred principally to the house administration committee , where i was able to make an official record of its many flaws . 
neither house passed simple legislation which would have corrected an oversight in the legislation creating the department of homeland security in 2002 , which failed to place the supposedly critical new cabinet officer somewhere -- anywhere -- in the statutory line of success to the presidency . 
though hearings were held , neither house addressed significant issues of presidential succession , such as the role of the speaker and president pro tempore and lame duck cabinet members in the succession lineup , and the ability of some officials to `` bump '' others serving as acting president under the current federal statute . 
mr. speaker , i plan to urge further action on congressional continuity issues in the new year , to work with my colleagues on the committee on house administration to assert our own jurisdiction more effectively and to push other relevant committees to do the same . 
we need both more effective action , and better internal cooperation , to accomplish these goals . 
the material previously referred to by ms. slaughter xz4003780 is as follows : explanation of 3-day layover supermajority vote requirement 1 . 
committee reports . 
clause 4 ( a ) ( 1 ) of rule xiii requires committee-reported bills to lay over for three days before consideration in the house . 
the purpose of this rule , which dates from the legislative reorganization act of 1970 , is to give members who did not participate in committee deliberations time to consider the committee 's work . 
the three-day layover period gives members time to familiarize themselves with the legislation and to prepare for house debate , which could include drafting amendments to the committee-reported bill . 
when he was a minority rules committee member , chairman dreier explained the importance of this rule in the following way : `` why is it that we have the 3-day layover ? 
very simple , mr. speaker , i do not think you would enter into a business agreement or purchase a home or engage in any kind of major activity without having read it first . 
the idea behind the 3-day layover is very simple . 
it is there so that we may in fact allow members to have the opportunity to review legislation before they exercise their constitutional right and vote for it or against it. '' althoug chairman dreier was very critical of special rules that waived the 3-day layover when he was a minority rules committee member , his committee routinely reports special rules waiving 3-day layover of committee-reported legislation . 
in the 108th congress , the rules committee waived the 3-day layover of committee-reported legislation 31 times . 
the purpose of this amendment is to restore regular order to the committee reporting process . 
it would allow the house to adopt a rule waiving the 3-day layover of committee-reported legislation only with a two-thirds vote -- in the same way the house must approve a rule calling for same-day consideration of a bill by a two-thirds vote . 
2 . 
conference reports . 
house-senate conferences are a critical part of the congressional deliberative process because they produce the final legislative product that becomes the law of the land . 
the conference is where the final compromises are made and the final statutory language on the bill 's toughest issues is negotiated and drafted . 
as chairman dreier wrote back in 1993 : `` deliberative democracy is just as important at the end of the legislative process as it is at the formative subcommittee stages or the amendatory floor stage . 
in fact , the case can be made that it is even more important that congress be fully informed and deliberate on that final product since that is the version that will become law. '' because only a restricted group of house members participate in conferences and because conference reports can contain significant policy changes from the house-approved version of a bill , the standing house rules provide members a number of protections against the conference process . 
perhaps the most important protection is the one found in clause 8 ( a ) ( 1 ) ( a ) of house rules xxii , which requires conference reports and joint explanatory statements to lay over for three days after publication in the congressional record . 
the purpose of this rule is very clear . 
since most members do not participate in the conference , they need time to study and familiarize themselves with the conference product . 
conference reports on major legislation run sometimes hundreds although conference reports are privileged and could come directly to the floor for consideration without a rule , they are routinely considered under special rules because they are often in technical violation of one or more sections of rule xxii or the budget act of 1974 . 
while it is understandable that the majority may need to use special rules to waive certain points of order against the content or consideration of conference reports in particular situations , the majority has made it the practice to grant `` blanket waivers '' to virtually every conference report the house considers . 
twenty-five of the 28 special one of the troubling consequences of this policy is that members only learn about the details of a conference report after it has already passed the house . 
some of these conference reports reconfirm the truth of the old saying that `` the devil is in the details. '' chairman dreier made this very same argument , when , as a minority rules committee member , he opposed waiving the 3-day layover on conference reports . 
he wrote : `` the house and senate have been repeatedly embarrassed over the years by conference reports on voluminous pieces of legislation which have been voted on before even properly printed or distributed , let alone understood . 
only after their enactment have some of the provisions come back to haunt the congress. '' the 108th congress has had its share of embarrassing episodes involving the quick approval of conference reports that were later discovered to contain controversial provisions added into bills during the conference stage . 
for example : one of the earliest actions of the 108th congress was to repeal the embarrassing provision republican leaders had slipped into the homeland security conference report at the end of the 107th congress that protected eli lilly and a number of other pharmaceutical companies from civil liability for their production of the vaccine preservative thimerosal . 
the energy bill conference added scores of obscure provisions that had not appeared in the house or senate bills , including the embarrassing `` greenbonds initiative , '' which turned out to be subsidy to build a hooters restaurant in shreveport , louisiana . 
the recent conference report for the fy05 omnibus funding bill included a provision giving appropriations committee members and staff access to the internal revenue service tax returns of u.s. citizens . 
to avoid future embarrassing episodes such as these and to restore members ' rights to have three days to study a conference report , this section would allow the house to adopt a rule waiving the 3-day layover of conference report only with a two-thirds vote . 
previous questions for h. res. 5 -- 109th congress opening day rules package in section 2 : amendment to h. res. 5 offered by ms. slaughter xz4003780 of new york strike section 2 ( k ) ( 2 ) ( relating to dismissal of complaints ) and redesignate the succeeding paragraph accordingly. & lt ; p & gt ; 