Questions of Privilege

Summary: The Speaker of the House normally sets the legislative agenda. But any Representative can force impeachment to be introduced on the floor because it is a "question of privilege". The resolution is first announced on the floor. The Speaker can call for immediate consideration or schedule consideration to occur within two days. When it is called up the Speaker rules on whether it is really privileged. That ruling can be appealed by a floor vote. The resolution can then be tabled but a member can request a roll call vote. An impeachment resolution would likely then be referred to the Judiciary Committee. If they decide to vote on the actual resolution then it is debated for at least one hour.

What is a "question of privilege" and why is it important for impeachment?

The Speaker of the House sets the legislative agenda and could prevent impeachment from being scheduled for debate. But there is a catch. Resolutions of impeachment have what is called "privilege". Privileged business cannot be ignored and must be acted upon before other items of business. They must either be tabled or debated for at least one hour.

Note that in order to have Privilege, the resolution to impeach must be introduced by a Member, or by a House Committee.

Impeachment is Privileged Business

According to House Practices, Chapter 36, "Order of Business; Privileged Business":

Privileged business is business of such importance as to enjoy precedence over the regular order of business. It is business that can supersede or interrupt other matters that might otherwise be called up or be pending before the House.

In general Constitutional matters are considered more important than regular business. Impeachment is, therefore, privileged:

From House Practices, Chapter 42, "Questions of Privilege"

"Issues relating to the jurisdiction of the House or its prerogatives under the Constitution may give rise to a question of the privileges of the House. 2 Hinds §§ 1480–1537;" including "The constitutional authority of the House with respect to impeachment propositions. 3 Hinds §§ 2045–2048."

According to House Rule IX on "Questions of Privilege", Section 702:

"The privileges of the House, as distinguished from that of the individual Member, include questions relating to its constitutional prerogatives..." and "The constitutional prerogatives of the House also include its function with respect to: (1) impeachment and matters incidental thereto (see § 604, supra);"

Also from House Practices, Chapter 36:

"...since the exclusive power of the House in the impeachment of civil officers arises from article I, section 2, clause 5 of the Constitution, the House has determined that propositions to impeach, and reports from a committee investigating charges of impeachment, are highly privileged."

Investigations that might uncover impeachable crimes are generally not privileged unless, as Jefferson Manual LIII, Section 604 states:

"Where a resolution of investigation positively proposes impeachment or
suggests that end, it has been admitted as of privilege (III, 2051, 2052,
2401, 2402)"

Note that reports on resolutions of inquiry from a Committee are also privileged when delivered to the House.

House Practices, Chapter 36, also clarifies some potentially confusing terms:

"Privileged questions are to be distinguished from what are termed ‘‘questions of privilege.’’ Privileged questions relate to the order or priority of business under the rules of the House, whereas ‘‘questions of privilege’’ pertain to the safety and dignity of the House, to the integrity of its proceedings, or to the rights or reputation of its Members under rule IX. 3 Hinds §§ 2654, 2718; see QUESTIONS OF PRIVILEGE."

A resolution of impeachment is a ‘‘question of privilege’’ and not a "privileged question". Thus,when Representative William B. Lamar of Florida, rose to impeach Charles Swayne, he claimed the floor as a "question of privilege".

How to Raise a Question of Privilege

A call for Impeachment must be made as a resolution. The Speaker of the House must schedule it within two days after being announced or can call for immediate consideration. The Majority Leader or the Minority Leader can call for immediate consideration of their own resolutions. This is detailed in House Practices, Chapter 42:

"Questions of the privileges of the House are brought before the House in the form of a resolution. 3 Hinds § 2546; 8 Cannon § 3464; Deschler Ch 11 § 4.2. Under rule IX such a resolution is privileged when called up by any Member. 3 Hinds § 2536; § 2, supra. However, its privilege is subject to a two-day notice requirement, which must include an announcement of the form of the resolution. Such announcement may be dispensed with by unanimous consent. Manual § 698. The Speaker designates the time for consideration within two legislative days after the announcement, which may include immediate consideration. Under rule IX the Majority and Minority Leaders are excluded from the notice requirement. They may offer the resolution at any time, yielding only to the motion to adjourn. Manual § 699."

The announcement must be made using the following language:

"Mr. Speaker, pursuant to clause 2(a)(1) of rule IX, I rise to give notice of my intent to raise a question of the privileges of the House. The form of the resolution is as follows: ..."

The Speaker will then schedule the introduction of the resolution, at which time the Member will say:

"Mr. Speaker, I rise to a question of the privileges of the House, and offer a resolution announced on lll."

When the resolution is called up, the Speaker must rule on "whether the question presented constitutes a question of the privileges of the House." The decision can be appealed and is subject to a vote by the House.

According to the House Parliamentarian office, after being ruled a question of privilege, a privileged resolution can be tabled to avoid debate. A roll call vote can be requested instead of a voice vote so those tabling the resolution will be on record.

If it is not tabled then the resolution must be debated for at least one hour. Another hour may be spent debating whether to refer the resolution to committee.

"A resolution offered under rule IX is read in full. Manual § 700. A Member offering the resolution is recognized under the hour rule. Deschler Ch 11 § 7.1. Such Member must confine remarks in debate to the question raised. Deschler Ch 11 § 7.2. Under rule IX clause 2(a), the hour allotted for debate on a resolution offered from the floor as a question of the privileges of the House must be equally divided between the proponent of the resolution and the Majority Leader or the Minority Leader or a designee, as determined by the Speaker. Manual § 699."

Following the debate, the motion can be tabled, set aside for a previous question, postponed or referred to a committee. (Chapter 42)

Tabling a resolution raising a question of the privileges of the House is considered a final adverse disposition of that resolution, although the question may be rephrased and presented anew or reoffered on a subsequent day. 5 Hinds § 5438. Any appeal from a decision by the Speaker disposing of the question is likewise subject to the motion to lay on the table. Deschler Ch 11 § 6.3.

The best result for a resolution to impeach would be to refer it to the Judiciary Committee with a deadline for them to report back to the House. Then the committee could not just ignore the resolution as it has done in the past.

References

Recent Examples of "Questions of Privilege" (from Barbara Ellis)