Compensation Clause - Article 1, Section 6, Clause 1

  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. 

                                                                                             ARTICLE I, SECTION 6, CLAUSE 1

COMMENT: There were two critical questions that the Framers attempted to solve: Would federal legislators be paid at all? And, if so, would they be paid by their respective states, or by the federal government?

The first question was whether the federal legislators would be paid at all. The Framers feared that unpaid legislators would turn corrupt in order to supplement their very own incomes. They thought that not paying legislators might attract candidates without a sense of duty to their country, and limit the candidates to being wealthy – inadvertently creating a legislative plutocracy.

The second question dealt with the source of payment. Most of the Framers wanted the legislators to be paid by the Federal Government verses by the States, which was the case under the Articles of Confederation. They thought that being paid by federal funds would make them less beholden to the states since they were being called to a national service.

Currently, Congress has broad flexibility is designing legislative compensation schemes; however, it is subject to the Twenty-Seventy Amendment that prevents a sitting congress from giving itself a raise that takes effect during its term.

Adjournment - Article 1, Section 5, Clause 4

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.  Adjournment - Article 1, Section 5, Clause 4

Comment: The Framers made sure that the two Congressional chambers had equity regarding the operations of the Legislative Branch, which was an important check on their power. For example, the Framers did not want one House to prevent the other from meeting and performing its duties.  Also, under this provision, neither the House of Representatives nor the Senate would be able use its power to adjourn to another time or place in order to check the actions of the other. 

Moreover, at the Convention, some were worried that the two Houses of Congress would move the "government" by simply agreeing upon the place to meet. So, the Convention decided that Congress could by "law" establish the seat of government (See Article 1, Section 8, Clause 17), but the Framers did leave Congress the ability to make temporary moves in the event of emergency circumstances. For example, during the 1790s, the three branches moved from Philadelphia to Trenton and during the  War of 1812, the government moved to Washington.

While the President can adjourn Congress under Article II, Section 3, in the event Congress cannot agree, the two chambers have always come to an agreement as to when to adjourn. However, these provisions have not been without unintended consequences. For example, one of the first instances was when the Southern states seceded from the Union. They deprived the sitting Congress of a quorum. In order to continue governing, President Abraham Lincoln issued the very first Presidential Order on April 15, 1861, Executive Order 1.

The most complex consequence of Clause 4 relates to when Congress takes a recess and when it adjourns. A recess is a temporary halt to activity on the floor. Everything stops, and when the recess ends, the chamber resumes from where it left off. A recess might last 10 minutes or it might last weeks. The length of time does not matter. An adjournment is a formal end to business in the chamber, and upon return the chamber does not resume from where it left off. Just like a recess an adjournment can be for one minute or for three weeks. However, unlike a recess, an adjournment creates a new legislative day.

House Journal - Article I, Section 5, Clause 3

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

COMMENT: The House Journal Clause requires each house to keep a journal of its proceedings. A journal is a book that records the actions and ideas of a person or group. This was to "ensure publicity" and "responsibility...to their...constituents" as stated by Justice Joseph Story.

To be sure, the requirement to keep a journal was not controversial; however, the provision allowing certain matters to be kept secret did cause concern. For example, Patrick Henry stated, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." Others were concerned that publishing only "from time to time" would further conceal their actions. However, Madison argued that it was only to allow for flexibility, accuracy, and convenience.

In any event, the journal did not publish all that useful of information; it usually published lists of bills and resolutions, etc., not word for word debates and testimony. As a result, the secrecy matter really applied to whether the proceedings would be open to the public.

Although both houses have complete discretion over what proceedings will be secret, Congress has not used its privilege of keeping information secret all that much (the Senate has used it more than the House) - keeping such matters private as to impeachment, classified information, and national defense as a general rule.

While not required to do so, in 1873 Congress implemented the Congressional Record, which includes debates and undelivered remarks and documents. In addition, journals, newspapers, radio, and television (like C-SPAN) have made most of the actions of Congress open to the public as a whole.

Primary Source - The Heritage Guide to the Constitution

Rules and Expulsion Clause - Article I, Section 5, Clause 2

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Comment:  The Constitution permits the House and the Senate to determine their own rules of proceedings. To that end, it helped secure the independence of the Congress from the executive and judicial branch. Under this provision, representatives and senators may be expelled for inappropriate behavior with two-thirds vote. Originally, there was not a two-thirds requirement; however, Madison was concerned that the majority party would abuse its power and expel minority members if only a majority vote was required.

While impeachment is a process of accusing an official of wrongdoing before a tribunal - i.e., a president could be impeached for committing a crime. Expulsion, however, means being removed from office and is the only Constitutional tool to remove a sitting Member from office.

Qualifications and Quorum - Article1, Section 5, Clause 1

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and 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.

Comment: This provision gives to the House and Senate the power to determine whether an election of a member is valid, and whether the person elected meets the Constitutional requirements for service. This type of provision was common throughout England and America - e.g.,eight states had similar clauses in their constitutions. In any event, this clause was not litigated in court for almost 200 years until the House refused to seat Adam C. Powell because he had allegedly embezzled House funds and lied to the House. Powell sought a judicial declaration of the matter.

In Powell v. McCormack, the Court held that although Article I Section 5 provided that "Each House shall be the Judge of the...Qualifications of its own Members," Article 1 Section 2 specifies exactly three qualifications -- age, citizenship, and residency -- and that implies that there can be no more qualifications added by Congress. Moreover, in Morgan v. United States, Judge Scalia held that the House's determination as to which candidates had been elected was not within the court's power to review (i.e. the issue was nonjusticiable).

Regarding the Quorum provision, there was a two-thirds requirement under the Articles of Confederation, which was a major onstacle that they did not want anymore. As a result, the Framers settled on a majority - and some even thought that was too high as well.  The day-to-day adjournment provision allows the business of the Congress to carryon with a majority needing to be present. As a result, in todays' Congress a quorum is not usually considered, unless a member requests a quorum.

A real threat to the quorum requirement exists if a sufficient number of members decided to not attend so as to prevent a quorum and keep business from being done - e.g., Wisconsin. As a result, the Framers saw fit, thankfully, to permit each house "to compel the attendance of absent members," which passed without debate. Currently, fifteen Member of the House may order the Sergeant at Arms to compel the attendence of the absent Members.

Primary Source - The Heritage Guide to the Constitution.

Meetings of Congress- Article 1, Section 4, Clause 2

"The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day."

Comment: The Framers were careful to make sure that the executive branch did not control Congress. As a result, they did not consider adopting the British model, which the executive called Parliament to meet. Although the Framers did permit a provision allowing the President to call a special session of Congress for "extraordinary Occasions" as stated in Article 2, Section 3, the Framers maintained a bright separation-of-powers line.

Initially, the Framers argued over "when" to meet. Some wanted to meet in May because Europe met during the winter, which such result would arrive in the U.S. around spring; and it would be more conducive to travel. In the end, they decided on December because it would be more convenient for business owners and would coincide with State elections.

Election Regulations - Article 1, Section 4, Clause 1

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Comments: This provision delegates to the state legislatures (not the executive or judicial branch) the authority to determine the time, place and manner of electing Senators; however, the provision also granted Congress the authority to supersede state law.

Regarding the authority for Congress to supersede the States, the Anti-Federalist were troubled that Congress would manipulate election laws so that they could stay in office longer.

Countering, Hamilton stated in The Federalist No. 59, "every government ought to contain within itself the means of its own preservation." He thought, however, that Congress would exercise this power only "whenever extraordinary circumstances might render that interposition necessary to its safety."

Furthermore, the provision requires that "Congress," (i.e., both sides) as a whole was needed to supersede state law. As a result, because the Constitution was originally ratified with the House representing the people and the Senate representing the States - having both houses of Congress agree, meant a national consensus was met, which provided additional safety.

However, despite Hamilton's thoughts of Congress acting only in "extraordinary circumstances," it has actually had a significant foot print. Congress has passed many Voting Rights Acts, such as the Enforcement Act of 1870 (curbed the abusive electoral process), Voting Rights Acts of 1965 (prohibitions on racial discrimination in voting), 1970 Voting Rights Act (reduced the voting age to 18 in state and federal elections); and it has passed numerous amendments, such as the Fifteenth Amendment (prohibited voter discrimination on the basis of race), Seventeenth Amendment (popular election for Senators), Nineteenth Amendment (prohibited voter discrimination on the basis of sex), Twenty-fourth Amendment (prohibited poll taxes in federal elections), and Twenty-sixth Amendment (gave 18 year olds the right to vote).

State laws are still important; however. As States, for example, are still in control of the rules for recounts and for replacing candidates who drop out shortly before the election, etc.

Primary Source. The Heritage Guide to the Constitution.