High Theater Rules at Joint Sessions of Congress

President Barack Obama's Sept. 9 health care speech before a joint session of Congress focused more than usual attention on the curious spectacle of two sitting legislative bodies—not talking, not legislating, just sitting (most of the time).

The uncivil outburst of one Republican member caused jaws to drop throughout the chamber and around the country. I could just hear John Q. Public asking: "Who do these guys think they are to interrupt the president of the United States in this secular sanctuary of American democracy?" (OK, John Q. might not phrase it quite that way.)

Fortunately, immediately afterward the House Republican leadership prevailed on the errant member to apologize to the president. Speaker Nancy Pelosi (D-Calif.), sitting behind the president at the time of the incident, later reported that the Parliamentarian had written her a quick note listing options for dealing with any subsequent outbreaks. (Restore order!)

The brouhaha raises the question of just what rules apply to joint sessions of Congress. One might presume House rules apply because, even though the House is in recess, the joint meeting is held in the House chamber and presided over by the Speaker. But that presumption would be wrong. In fact, House rules are flouted with impunity during these bicameral meetings (more on that later).

The joint session of Congress is indeed a strange beast with roots dating back centuries, to the British sovereign's annual "Speech from the Throne," laying out the government's legislative agenda before both houses of Parliament. Similarly, the Constitution provides that the president "shall from time to time give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient."

When the president informs the leadership of Congress of an interest in speaking to a joint session, the arrangements are formalized by both chambers adopting a concurrent resolution. The resolution sets the date and time for the two bodies to assemble in the Hall of the House, "for the purpose of receiving such communication as the President of the United States shall be pleased to make to them."

In asking the House Parliamentarian what rules apply at joint sessions, I was told that the proceedings are governed entirely by the terms of the concurrent resolution. That means the sole function and expected behavior of all dignitaries assembled on the chamber's floor is passive—to listen. They are all part of an elaborate stage set—a grand tableau of highly cultivated potted plants.

If House rules were being followed, the president would not be allowed to recognize persons sitting in the galleries and would be required to address himself only to the chair; members would not be allowed to interrupt the speech for any purpose—laughing or clapping, booing or hissing, standing and sitting; and spectators in the galleries would not be allowed to applaud the president's remarks. Yet, all of these activities are tolerated as part of the occasion's high theater. In fact, a president's success is measured by the number of times he is interrupted by applause.

Contrary to the claim of some members, the shouted insult at the president was not a breach of House rules of decorum in debate because: a) it was not a session of the House; and b) members were not debating. Members, therefore, cannot have their offending words taken down or be punished for them as occurs during House debates. They have not been recognized to speak in the first place. However, the personal insult hurled at the president at the joint session was way over the line of acceptable behavior, even by the norms of boisterous theater.

Obama graciously accepted the apology proffered by the offending member the morning after the incident. But that was not sufficient for some who felt the House was also owed an apology. When it was not forthcoming, they pushed for adoption of a resolution last Tuesday raising a question of House privileges, disapproving the member's behavior on grounds that it "was a breach of decorum and degraded the proceedings of the joint session, to the discredit of the House."

That latter phrase is derived from Clause 1 of the House Code of Official Conduct, which states that members "shall behave at all times in a manner that shall reflect creditably on the House." Ordinarily, if a resolution is filed from the floor of the House charging a violation of the Code of Conduct or any other House rule, it is either tabled or referred to the Committee on Standards of Official Conduct for investigation.

The committee's rules make clear that the House may punish members by penalties of reprimand, censure or expulsion. The committee may recommend or impose such other penalties as it sees fit, such as a fine or a letter of reproval. Only once before was a member's conduct "disapproved" and that was by an ethics committee report in 1990, and not by House resolution.

The resolution's proponents circumvented the regular order of ethics committee referral, investigation and recommended penalties. The unprecedented, instantaneous adoption of a resolution of disapproval indicates that the sponsors knew they were on shaky grounds in attempting to enforce House rules of decorum over a joint proceeding that was not subject to House rules. Not surprisingly, the resolution was adopted largely along party lines, ratifying the House's new role as Grand High Inquisitor for Members' Mindless Musings and Mutterings.

The stature of public officials is often determined by how small they act while shirking the tall orders of their office. Let the real health care debate resume.