Delegates to the House of Representatives: Who Are They and What Do They Do? (with Elliot Mamet)

Understanding Congress

The topic of this episode is, “Delegates to the House of Representatives: who are they and what do they do?”

My guest is Elliot Mamet. He is a Postdoctoral Research Associate and Lecturer at the Princeton School of Public and International Affairs. Previously, he served as an American Political Science Association Congressional Fellow. Elliot holds a Ph.D. in Political Science from Duke University.

Also important to note is that Dr. Mamet spent time working in the office of Washington, D.C. delegate, Eleanor Holmes Norton. All of which makes him a great person to ask the question, "Delegates to the House of Representatives: who are they and what do they do?"

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be, and that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I’m your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington D.C.

Welcome to the podcast.

Elliot Mamet:

Thank you, Kevin. It's great to be here.

Kevin Kosar:

Let's start with a really simple question. Listeners are all too familiar with the fact that the House typically has 435 members. But they also have delegates. How many delegates are there to the House of Representatives?

Elliot Mamet:

Currently, there are five delegates to the House of Representatives. They serve from Washington, D.C., Guam, American Samoa, the U.S. Virgin Islands, and the Northern Mariana Islands. There's also a Resident Commissioner—a non-voting member—from Puerto Rico. So there're six total non-voting members in the House.

Kevin Kosar:

Representatives in the House come from districts these days. Where and who do these delegates and non-voting members represent? And is represent even the correct term for what their role is?

Elliot Mamet:

The non-voting members of Congress represent Americans who live outside the several states. Throughout their entire history, they've represented people who don't live in states—whether that's in the federal enclave of the District of Columbia or in territories either on the path to statehood or not on the path to statehood. Today, they represent 4 million Americans. Of that group, 3.5 million live in the United States territories—those people are 98% racial and ethnic minorities—and the remainder are the residents of the District of Columbia who are majority black or Hispanic. So the delegates represent overwhelmingly non-white constituents, and they represent a group of Americans who lack the same citizen rights and lack political equality to those people living in the several states.

Kevin Kosar:

Now, on this program, there's been a number of episodes where I and a guest have talked about earlier Congresses—the Congresses at the founding, early 20th century, etc.—and non-voting representatives just didn't come up in the conversation. Are they a recent development, or have they always been with us?

Elliot Mamet:

Great question. The non-voting representative has been a feature since the earliest Congresses. The institution dates back at least to 1784 when a committee chaired by Thomas Jefferson suggested that territories prior to becoming a state would be able to send a delegate to Congress with the right of debating but not of voting.

That proposal was codified by the Northwest Ordinance, and the first delegate sent to Congress was James White of the territory South of the River Ohio, who was admitted to be a delegate to Congress in 1794. And since that time—with a single exception—non-voting members have sat in the United States Congress.

For much of American history, those delegates represented territories on the road to statehood. That changed in two different periods. First was in 1898 with the Spanish-American War, where the U.S. acquired so-called “unincorporated territories,” which were not destined for statehood, including Puerto Rico and the Philippines. Those territories were given resident commissioners, non-voting members of Congress. And second, in the 1970s, Washington, D.C., Guam, the U.S. Virgin Islands, and American Samoa were given non-voting seats. Even though those places didn't seem like they were on the road to statehood, Congress thought it was a way to incorporate the voices of citizens living outside the states in the federal government. The most recent delegate added was the delegate from the Northern Mariana Islands. And last year, the House Rules Committee held a hearing on admitting a delegate from the Cherokee Nation, which has a right to a delegate to Congress under an 1835 treaty, so that issue is pending before the Congress—the Congress has not acted on that yet. But that just goes to show that delegates have been a feature of Congress since its earliest days and I think have played an important role in representing people living outside the states in our national legislature.

Kevin Kosar:

First I want to offer a comment, and then a follow up question. The first comment is for listeners: I want to underscore that we are talking about the House of Representatives. We're not talking about the Senate. We've not had these in the Senate.

But you mentioned earlier that delegates and non-voting members in theHouse were coming typically as a product of a territory being on the path to statehood. The 70s sounds like it was a qualitatively different situation or motivation and part of it sounds like an idea that if you are going to be Americans, then you have to have some sort of representation within the People's House in the name of fairness. Were there other motives in the mix there? Was it, “If we have them, perhaps this will boost the effort to move down the road to statehood,” or some other sort of factors that came to play?

Elliot Mamet:

Great question. So I have a project with Austin Bussing of Trinity University on the expansion of the delegate position in the 1970s. And what we find is that the overwhelming driver of that position was racial preferences. In other words, the delegate position was championed by civil rights organizers here on the mainland and advocates in the territories themselves as a way to give voice to Americans living outside the states. It was also blocked on racial grounds from conservative Southern chairmen in the House, for instance. The D.C. delegate position was also deeply tied to racial politics. D.C. home rule is often thought of as a product of the civil rights movement, and the D.C. delegate was a way to give this then-majority black city some sort of representation in Congress. So we argue that racial preferences were central to understanding why the four delegate seats were added in the 1970s.

I'll also say to answer your question, Kevin, politics mattered—political entrepreneurship mattered. One example of that was Philip Burton, the famous liberal leader in the Democratic Caucus. He advocated expanded seats for the delegates, both because he thought it was the right thing to do—it comported with ideas of political equality and civil rights—and also because it gave him increased power in the Democratic Caucus. He famously lost his leadership election to Jim Wright by one vote in 1976, and if it wasn't for the delegates, he would have lost it by more. His biographer said if Burton couldn't rule the Congress, at least he could rule the territories. And so he was very focused on territorial seats, both because he thought it was the right thing to do and as a way to gain power within the House.

Kevin Kosar:

Interesting. They're called delegates and non-voting members. They're not called representatives or just members. That implies that they are sort of the same but also different in terms of their powers within the chambers. Walk us through some of the similarities and the differences between them and a typical House member.

Elliot Mamet:

Before I get into that, when you meet a delegate on the street, it's polite to call them congressman or congresswoman. I don't think they like to be called delegate themselves.

But it's a great question. On the surface, these non-voting members of Congress seem very similar to their 435 voting peers. They have a congressional office, a website, they field staff, they earn the same salary as others. Importantly, they can sponsor and co-sponsor legislation—a delegate to Congress, Eleanor Holmes Norton from D.C., has co-sponsored more legislation than any other member of the House or Senate in history. They can make many parliamentary motions. They can serve on and vote in committees. They can even accrue seniority to become chair or ranking member of committees or subcommittees. They can move an impeachment and serve as impeachment manager, as Delegate Stacey Plaskett of the Virgin Islands did during the Trump impeachment. They can preside in the Committee of the Whole and—during certain congresses—they can vote in the Committee of the Whole if their vote is not decisive.

So those are some similarities. Let me get to the differences.

Non-voting members, when they vote in Committee of the Whole, their vote doesn't count if the vote is decisive. Five times in congressional history, the Congress has immediately risen from Committee of the Whole to vote in the full House on an amendment because the votes of the non-voting members were decisive. This most recently happened on July 13th. There was a vote on an amendment to the NDAA proposed by Mr. Ogles that would ban DEI in the military, and the vote—including the non-voting members—was 216 to 216, so their vote was decisive. The House had to immediately rise and vote without them. The vote was 214 to 213, so the amendment—which would have failed—was agreed to. So that's one of the differences.

There are important other differences too. The non-voting members cannot vote on final passage of legislation, which means that on an array of federal laws which affect people living in Washington, D.C. and the territories, the representative does not have a vote on the enactment of that law. Under the Constitution, they cannot vote for Speaker of the House. Because they can't vote on final passage, they can't make a motion to reconsider. They cannot preside in the House. Lastly, they cannot sign discharge petitions. And I'll just say that members who die in office or resign, their signature still counts on a discharge petition. But the duly elected delegates from D.C. and the several territories cannot sign a discharge petition, so a deceased member of Congress has more procedural power in this way than an elected delegate representing American citizens in D.C. or the territory. So those are some of the important differences between non-voting members and their voting peers.

Kevin Kosar:

Got it. If I just pause for a second—and let me know if this question, it pulls you afield—listeners might be thinking, ‘the House goes into Committee of the Whole? What does that mean?’ If you could just briefly illuminate on that for listeners.

Elliot Mamet:

Committee of the Whole is a procedural device by which the House considers amendments to pending legislation. The House generally goes into Committee of the Whole when there's two or more amendments offered. In certain Congresses since 1993, the delegates have been able to vote on those amendments as long as their votes are not decisive.

Kevin Kosar:

Perfect. So earlier you mentioned Representative Phil Burton's quest to become the top dog, and he was defeated by Jim Wright, and you mentioned that these delegates, non-voting members had a role. What role do they play in the selection of the speakers? They can't vote on the floor, but they can do what?

Elliot Mamet:

So the non-voting members of Congress can vote to elect party leaders within the Republican Conference or Democratic Caucus. They get a vote internally. And even recently, we saw that Mr. Scalise picked up the votes of the two Republican delegates and one Republican resident commissioner in the internal Republican leadership election. But when it comes to the floor, the delegates and resident commissioner may not vote. Their name is not called because they're not elected members of the House representing the several states, so they're disenfranchised in terms of picking who the Speaker of the House may be.

Kevin Kosar:

But within the conference, they get to vote. And in a close race—which it seems like those are getting more and more common, at least for the GOP these days—that could be a big deal. Could their votes be decisive there?

Elliot Mamet:

Certainly, they were just about decisive in 1976. And as someone who's trying to become party leader, every vote matters, so appealing to these territorial delegates or the delegate from the District of Columbia can be important to solidifying support within the party. One way to accommodate them is to make changes in the House rules that would win their support. It was speculated this year—we have no way of knowing, though—that Speaker McCarthy decided to give the delegates a vote in Committee of the Whole to win their support in the conference. The 118th Congress is the first Republican-controlled House that has given the delegates the right to vote in Committee of the Whole, and it may have been a way for McCarthy to at least get those three individuals to support him within the Republican Conference.

Kevin Kosar:

Really interesting. If I may, I'd like to double back to something you mentioned earlier, which was that possible delegate from Cherokee Nation. What's the process by which that could happen?

Elliot Mamet:

Great. So just to give listeners a sense of this issue, there is an 1835 treaty called the Treaty of New Echota, which guaranteed the Cherokee Nation a delegate in the United States Congress. That treaty right has never been vindicated. Congress has never sat a delegate from the Cherokee Nation.

In December 2022, the Rules Committee held a hearing on seating the delegate and heard from experts at the Congressional Research Service and others on this topic. So there's many issues with ceding a Cherokee delegate that we don't know the answer to. One of the issues is how that would proceed; different scholars and advocates have different points of view. One point of view is that the House rules alone could be enough to seat a Cherokee delegate since this delegate would only be a member of the House. Another point of view is that Congress would need to pass a law actualizing this treaty right. Every other delegate to Congress has been authorized by statute.

But on the other hand, every other delegate to Congress has always represented a geographical area, whether that's Washington, D.C. or one of the territories. This individual would represent not a geographical area, but the Cherokee Nation writ large who are spread across multiple areas, so it's an open question before the Congress how—if they chose to seat the delegate—they would go about doing so.

Kevin Kosar:

Wow, that is really interesting. Are there any other possible delegates who might come up? Are there other American Indian tribes or others who have not been able to get into the game as they should?

Elliot Mamet:

The 1835 Treaty of New Echota is the treaty considered to have the clearest language providing a right to a delegate. But one question is which group is entitled to send a delegate. There's three different native tribes that all claim that treaty right. Two of them have designated a delegate. So that's an issue for Congress.

Indian tribes assert, provide a treaty delegate. And some of those issues were before the Rules Committee’s hearing last year.

The other thing I would say to your listeners, Kevin, is there are a variety of informal representatives from sub-state entities who come to Congress but are not formally admitted. For those living in the District of Columbia, you'll know that we elect two shadow senators, and those individuals are unpaid D.C. officials sent to represent D.C. in the US Senate and lobby for statehood. They're not admitted as Senators, they have no official capacity, and if they want to watch a Senate proceeding, they have to go to the public gallery. So there are other appointed officials representing sub-state entities who...