Sad Tuesday

March 6, 2012

Representative Donald Payne (NJ-10) died this morning, after a short bout with cancer. Rep. Payne was the first African-American to represent New Jersey in Congress. He was 77.

From an institutional standpoint, what happens when a Representative passes away while in office? A few things:

1. The Clerk of the House assumes responsibility for the Member’s office.  Representative Payne’s office will be renamed “Office of the 10th District of New Jersey.” Under House Rule II, clause 2(i)(1), the staff of the office may continue to be paid for performing their duties, under the supervision of the Clerk, until an election fills the office with a new Member.

While these staff responsibilities no longer include advising on roll call votes, developing legislation, or taking policy positions, there is still the normal amount of constituent casework to be handled, as well as the process of closing the office and organizing the files and records of the Member, which under House rule are the property of the Member.

Many staff, of course, leave their jobs to pursue other employment opportunities. The Clerk is authorized to hire and terminate staff, as necessary, in order to maintain the functioning of the office. In typical practice, only a small number of staff are necessary.

2. The Member’s next of kin receive a benefit. Under law (2 U.S.C. 38a), the remainder of the Member’s salary is paid to the Member’s specified beneficiary or heirs. It has also been long-standing practice for Congress to include a death gratuity, usually in the sum of one year’s salary, payable to the deceased Member’s widow or widower, or children, in the next annual Legislative Branch Appropriations Act.

3. The whole number of the House of Representatives is adjusted. The death of a Member triggers clause 5(d) of House Rule XX, which instructs the Speaker to announce that the whole number of the House has been adjusted. This is important for determining any numerical threshold that relies on a fraction of the total Membership of the House, such as the Constitutional quorum to do business. Since January 25, the House has had a whole number of 434 (due to the vacancy of the 8th district of Arizona). With Representative Payne’s death, the number will be reduced to 433.

4. An election is triggered. The Constitution provides for the filling of vacancies in the House, which can occur by death, resignation, expulsion, declination, or the House declaring a vacancy. Under typical practice, Governor Christie of New Jersey will declare the vacancy to exist in the 10th district, and then will issue writs of election to fill Representative Payne’s seat, under the protocols of New Jersey law.

5. Various memorials are traditionally provided for by the House. The death of Representative Payne will almost certainly be officially acknowledged on the floor of the House, and that recognition may be followed by a moment of silence. At some point, either immediately or in the following days, a resolution of condolences is usually brought up on the floor, and Members of both parties are given an opportunity to speak in memory of the Member. On occasion, a similar resolution may be offered in the Senate.

Unless the family of the Member is having a private funeral, statute provides that the House will pay for a congressional delegation to attend the Member’s funeral, and under law (2 U.S.C. 124), the House is authorized to defray to expenses of the funeral. If the Member is to be buried at the so-called Congressional Cemetary, the House is authorized by law to pay for the monument.

At the end of a Congress in which a sitting Member passed away, a tribute book is also produced by GPO, which includes the record of the memorials held in Congress, as well as tributes or eulogies entered into the Congressional Record by other Members.

Godspeed, Representative Payne. May you rest in peace.


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