980-981), implying that the Department of Justice does not control the litigation and legal position of the United States here, and implying that the Department of Justice is not empowered to speak through its attorney, in court, and on the record. 28 U.S.C. § 516 governs; the Department of Justice controls here, and, as to the role of oral argument, I am hard put to imagine what more the majority requires. Probably the Attorney General will have to arrange to appear personally in all cases.

The position of the Government, that it was claiming a right only to comply with a proper subpoena, is nonetheless valid for its having been the only position taken at oral argument. The Department of Justice and the Attorney General are certainly to be accorded the right so to delimit their argument, in the course of preparing the coordinated position of the United States. There is no prejudice whatsoever to appellants in the delimitation, since the validity of the subpoena was asserted in the Government's brief. (Government Br. at 13, reproduced supra), and there is no question that litigants may, in the course of proceedings, abandon arguments previously raised. Abrams v. American Security & Trust Co., 72 App.D.C. 79, 80, 111 F.2d 520, 521 (1940). The actual merits of the case should thus be addressed.

III. THE SUBPOENA

The subpoena directed the Chairman of the Federal Trade Commission the next day to deliver to the Subcommittee, inter alia, all records in its possession relating to oil and gas lease extensions on federal lands which involve Ashland Oil Co.

The Subcommittee claims it complied with the Rules of the House in issuing such subpoena and that accordingly the subpoena is valid. In particular it relies on Rule XI, cl. 2.(m), which provides:

(1) For the purpose of carrying out any of its functions and duties under this rule and Rule X any committee, or any subcommittee thereof, is authorized (subject to subparagraph (2)(A) of this paragraph). . .

(B) to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents as it deems necessary.

(2)(A) A subpoena may be issued by a committee or subcommittee under subparagraph (1)(B) in the conduct of any investigation or activity or series of investigations or activities, only when au[986]thorized by a majority of the members of the committee

Rules of the House of Representatives, 94th Congress. (Emphasis added).

A resolution of the Committee on Interstate and Foreign Commerce,

which the Subcommittee claims authorized it to issue the subpoena in question, was offered on April 17, 1975, by Mr. Staggers, Chairman of the Committee. The resolution provided:

RESOLVED, that in accordance with Rule XI, Clause 2.(m)(1) of the Rules of the House of Representatives, the Subcommittee on Oversight and Investigations, *** [is] authorized to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memorandums, papers, and documents as they deem necessary in the conduct of such Subcommittees of any investigation or activity or series of investigations or activities within their jurisdiction as set forth in Rule X, Clause 1(b) of said House Rules and the Rules and procedures of the Committee on Interstate and Foreign Commerce. (Emphasis added). (J.A. 407). In that Congress, at that time, 43 members constituted the Committee on Interstate and Foreign Commerce.2 A "majority of the members of the Committee" would thus be 22 members. Committee records, however, disclose that only 21 members of the Committee voted for the resolution.3 This is one member short of the required majority of the members of the Committee. Thus the subpoena issued by the Subcommittee was not properly authorized unless the rule is to be construed other than according to its plain meaning, as contended

2 121 Cong.Rec. H 224 (daily ed. Jan. 20, 1975). -29 Members of Congress elected members of the Committee; 121 Cong.Rec. H 322 (daily ed. Jan. 28, 1975)—14 (Republican) Members of Congress elected members of the Committee; Cong. Directory, 94th Cong. 1st Sess., p. 294 (1975) indicates 42 members. Thereafter Congressman Jarman was taken off the Committee. However, he was replaced by Congressman Maguire on March 18, 1975. 121 Cong. Rec. H 1874. The 1976 Congressional Directory, p. 295, discloses that the Committee continued to be constituted with the same 43 members as in 1975.

3 The resolution, as amended, was adopted 21-15, as shown by the following roll call vote ("P" indicates Proxy vote):

Mr. Dingell moved to reconsider the vote taken on the adoption of the resolution. Mr. Moss moved to table the Dingell motion to reconsider. CARRIED (VV). (J.A.409).

by the Subcommittee chairman, Congressman Moss. His brief and memorandum assert that his Subcommittee has duly authorized, in conformance with the above quoted provision of Rule XI, cl. 2.(m), 94th Congress, to issue the subpoena because the authorizing resolution was "passed by a majority of a quorum of the full committee." Supplemental Memorandum of Mr. Moss, filed May 14, 1976, p. 2 (emphasis added).

In the House of Representatives a quorum consists of a "majority of the committee."4 There is no question there that a "majority of the committee" means of the full committee. Thus 22 members would constitute a quorum and, according to the construction the Subcommittee here advances, 12 members of the 43-member committee would be "a majority of a quorum" [987] and fully able to authorize a Subcommittee subpoena if only 22 members were present. The Subcommittee thus contends that a "majority of the committee” means 22 members in one rule and that "a majority of the members of the Committee" could mean 12 members in the other rule. The Supplemental Memorandum of the Subcommittee also argues at p. 2: The House of Representatives has consistently interpreted "a majority of the members of the Committee" (House Rule XI, § 2(m)(2) (94th Congress)) to mean a majority of a quorum present and voting. [See attached correspondence between Congressman Moss and Speaker of the House, the Honorable Carl Albert; App. 142 (affidavit of Michael Lemov 17)].

In support of the above position the Supplemental Memorandum attaches a copy of a letter of May 13, 1976 from the Honorable Carl Albert, M.C., Speaker of the United States House of Representatives, to the Chairman of the Subcommittee, the Honorable John E. Moss, M.C. The text of this letter in its entirety reads as follows:

Dear Mr. Chairman:

I have received your letter of May 11, 1976, regarding the interpretation of House Rule XI, clause 2(m), which authorizes committees of the House of Representatives to issue subpenas.

There is no indication in the legislative history of the rule, which was adopted in the 93d Congress to become effective January 3, 1975, of any intent to require a different procedure for voting on subpenas than on other votes taken in House committees. Under the customary and correct practice of the House of Representatives, which derives its rule-making authority from the Constitution (Article I, Section 5, which provides that a majority of the House shall constitute a quorum for doing business), committee action is valid which is authorized by a majority of those Members voting, a quorum being present. It would create an anomalous situation to require a more stringent standard for authorizing the issuance of a subpena than for finding a witness in contempt of a committee for refusing to honor such a subpena, or for taking a final committee action in ordering a measure or matter reported to the House.

• Rules of the House of Representatives, 94th Cong. XI, cl. 2(1)(2)(A) (hereinafter cited as House Rules).

This letter correctly states that in the House of Representatives a majority of legal votes cast, a quorum being present, is generally sufficient to carry a proposition. This can be proved by a cursory examination of the proceedings in the House over any long or short period of time. And the "Rules of the House are the rules of its committees and subcommittees so far as applicable * * *"5 This is also the clear rule of the common law.6 Moreover:

Where a majority or other proportion of votes is required without specifying whether the vote refers to the entire membership or to the members present, or to the members present and voting, the general rule is that the proportion refers to the number present and voting.

Mason's Legislative Manual, Sec. 510, Para. 2 (1970), and cases cited therein. However:

Where a controlling provision of law requires a majority vote of the entire membership or of all members present or any other number or proportion to take action; that vote must be obtained, and a vote less than that number, although a majority of those present and voting, a quorum being present, is not sufficient. Mason's Legislative Manual, Sec. 511, Para. 1 (1970) (emphasis added).7

[988] There are many instances in which controlling provisions of law and the rules require something more than a majority vote of a quorum. Several instances appear in the Rules of the House of Representatives. Rule XXVII, cl. 1. for suspension of rules requires “a vote of two-thirds of the Members voting, a quorum being present * * *."; Rule XXIV. cl. 7, provides that the normal business of the House shall not be altered "unless the House by a two-thirds vote on motion to dispense therewith shall otherwise determine"; Rule XXIV, cl. 6, for a similar purpose requires a "two-thirds vote on motion to dispense therewith * ***"; and Rule XI, cl. 4.(b) to call up for consideration a report of the Rules Committee on the same day it is presented to the House requires "a vote of not less than two-thirds of the Members voting

The Constitution in several instances also requires more than a

House Rules XI, cl. 1.(a)(1).

• Mason's Legislative Manual, Sec. 510, Para. 1 (1970), and cases cited therein.

7 Citing:

Pimental v. San Francisco (1863), 21 Cal. 351; McCracken v. San Francisco (1860), 16 Cal. 591; People v. Wright (1902), 30 Colo. 439, 71 P. 365; State v. Fagan (1875), 42 Conn. 32; Anniston v. Davis (1893), 98 Ala. 629, 13 So. 331; Evanston v. O'Leary (1897), 70 Ill.App. 124; McLean v. East St. Louis (1906), 222 III. 510, 78 N.E. 815; Logansport v. Legg (1863), 20 Ind. 315; Cascaden v. Waterloo (1898), 106 Iowa 673, 77 N.W. 333; Hansen v. Anthon (1919), 187 Iowa 51, 173 N.W. 939; Warnock v. Lafayette, 4 La.Ann. 419; Zieler v. Central Power Co. (1896), 84 Md. 304, 35 A. 932; Stockdale v. Wayland School Dist. (1881), 47 Mich. 226, 10 N.W. 349; Whitney v. Hudson (1888), 69 Mich. 189, 37 N.W. 184; State v. Reichmann (1911), 239 Mo. 81, 142 S.W. 304; Edgerly v. Emerson (1851), 23 N.H. 555, 55 Am.Dec. 207; Baker v. Police Com., Port Huron (1886), 62 Mich. 327, 28 N.W. 913; State v. Wilkesville Tp. (1870), 20 Ohio St, 288; Leavitt v. Oxford etc. Silver Mfg. Co. (1883), 3 Utah 265, 1 P. 356; State v. Bevins (1898), 70 Vt. 574, 41 A. 655; Grindley v. Barker (1798) (Eng.), 1 B. and P. 229, 126 Reprint 875; Blacket v. Blizard (1829), 9 B. and C. 851, 109 Reprint 317.

Mason's Legislative Manual 350–51 (1970).

majority vote of a quorum. For the Senate to convict on impeachment requires "the Concurrence of two thirds of the Members present." U.S. Const. art. I, § 3. To expel a member from Congress requires "the Concurrence of two thirds. * * *” Id., § 5. A roll call in either House shall be entered on the journal "at the Desire of one fifth of those Present. ***" Id., § 5. Passing a "bill" over a President's veto requires for both the House and the Senate "two thirds of that House.

* *” Id., § 7. Similarly, “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary" if the President disapproves of same shall be repassed "by two thirds of the Senate and House of Representatives***." Id., § 7. The President may make treaties "provided two thirds of the Senators present concur ***." U.S. Const. art. II, § 2. Amendments to the Constitution may be proposed "whenever two thirds of both Houses shall deem it necessary ***." Id., art. V. A constitutional convention to propose amendments may be called upon "Application of the Legislatures of two thirds of the several States * * *." Id., art. V. Constitutional amendments shall be valid "when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof ***." Id., art. V. The Twelfth Amendment for the election of President requires "a majority of the whole number of Electors appointed ***.", and in electing a President in the House of Representatives a quorum consists "of a member or members from two-thirds of the states, and a majority of all of the states shall be necessary to a choice." The same amendment provides that the Vice President shall be the person "having the greatest number of votes

* if such number be a majority of the whole number of Electors appointed***.", and, if no person has a majority, the Senate chooses the Vice President at a meeting at which "a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice." The Fourteenth Amendment, § 3, provides that the disability thereby imposed for having "engaged in insurrection or rebellion against the" United States could be removed by Congress "by a vote of two-thirds of each House ***.”

So it is customary and usual in many instances for Congress to be required to act by some required vote which exceeds a majority of a quorum.

[989] We must thus decide whether Congress in adopting Rule XI, cl. 2.(m)(2)(a), supra, requiring "a majority of the members of the committee" intended to require a majority of the membership of the committee or a majority of a quorum of the committee. As indicated above this can mean a maximum difference between requiring 22