THE CNMI Constitution and CNMI law require both houses of the legislature to adopt new rules of procedure at the beginning of every term. This process of adopting rules is unique to the legislative branch, the first of three co-equal branches in our system of government.
A few months ago, in January 2021, all twenty members of the Twenty-Second House of Representatives voted to adopt the Interim Rules of the House of Representatives pursuant to Article II, Section 14(c) of the CNMI Constitution, and Title 1, Section 1104 of the Commonwealth Code. One of these rules allows the Speaker to vote twice in order to break a tie.
The tie-breaking rule is not new. It is, in fact, a House rule that has been in place for nearly a decade. All of our incumbent Republican colleagues have voted in favor of adopting this tie-breaking rule before, and at least since the 18th legislature, every Republican Speaker has had this tie-breaking power. And it was never an issue.
Our current Speaker is an Independent. He is neither a Democrat nor a Republican. In this narrowly divided 22nd House, Speaker Edmund Villagomez has been called upon several times to exercise his tie-breaking authority. As he has expressed to many of us, it is not an action he takes lightly. Each time he has used this power, he has voted with ten members and against ten members. Sometimes he has voted with the Democrats, and other times he has voted with the Republicans.
Before the Speaker first invoked the rule that grants him tie-breaking power, he and the other members of the House leadership consulted with legal counsel. Our House counsel, in turn, also consulted with Senate counsel. All four attorneys of the legislative bureau agreed that the Speaker’s exercise of tie-breaking authority — known as the “casting vote” — was legitimate and constitutional. In their opinion, there was nothing questionable or uncertain about the use of this power.
The tie-breaking rule was first established by a Republican-dominated House in 2013, but Republicans didn’t make up that rule out of thin air. Mason’s Rules of Parliamentary Procedure uphold the legitimacy of the presiding officer's casting vote and the legislative interest in breaking ties to meet the simple majority requirement and pass legislation.
Pursuant to House Rules, Mason's applies whenever controversies arise. Indeed, the Speaker’s casting vote power has been used before, even without an express rule in the official House Rules, during the term of the 17th CNMI legislature. When a tie occurred, the 17th House turned to Mason’s for guidance. What they found in Mason’s, Section 514(3) is that, “On rare occasions, the casting vote has been given to a presiding officer who is a regular member who may first vote as a member and then may vote again to break a tie.”
So, even without an express rule, the members of the 17th Legislature allowed their Republican Speaker to vote twice. And in the 18th Legislature Republicans made sure to adopt this tie-breaking rule which has been in the operating rules of the House ever since.
House Republicans only objected to the tie-breaking rule after Speaker Villagomez voted twice in order to pass a bill that they didn’t like. That particular bill, H.B. 22-33, asserts the legislature’s power of the purse over half a billion dollars in fiscal recovery monies coming to the CNMI through the American Rescue Plan Act. H.B. 22-33 also ensures that decision-making over this vast sum of money will not be left up to a single person, the governor. The bill was passed out of the House with a majority vote of 11-10.
After this vote, House Republicans turned to the Attorney General and questioned the constitutionality of the tie-breaking vote. In a letter addressed only to House Republicans, the AG claimed that the tie-breaking rule contravenes Article II, Section 5(c) of the CNMI Constitution, which requires a majority of votes cast for legislation to pass. The AG also acknowledged, however, that the Constitution is silent as to how ties should be broken.
In the 22nd legislature, during deliberations of the Ad Hoc Committee on the Rules, it was our Republican allies in the new House majority who suggested we change the tie-breaking rule. In the spirit of bipartisanship, House Democrats were open to making that change. We even helped draft the proposed language. But the new proposed rules were never adopted or even debated. Our Floor Leader, the Chair of the Ad Hoc Rules Committee (and also, by the way, a Republican) took them off the calendar, and the interim rules that were unanimously adopted at the inaugural session have become the permanent rules.
But why does this matter? Who really cares about the arcane nuances of parliamentary procedures? Should we spend lots of government resources asking the Supreme Court to decide our rules for us, as the AG has suggested we do? We say, no. The ability of the legislature to establish our own rules and interpret what they mean is inherently and exclusively ours.
Legislators must work together to solve problems. This is always true, but especially in an even-numbered House where votes can and do split right down the middle. We have a well-established rule in place that helps us break ties. Republicans agreed with that rule, until they did not. If Democrat proposals passed with the Speaker's casting vote must fail, then so too must Republican proposals. Our Republican colleagues can’t pick and choose which bills they are ok with the Speaker voting twice on, and which they are not.
Rules of procedure shouldn't change with the wind: stability is important for the orderly conduct of legislative business. But rules can be changed, and strengthened, if enough members agree. Members just have to come together in the first place to get to that agreement — and, indeed, to get anything done at all. At the end of the day, this is clearly a political question best left to twenty legislators to figure out — not three justices, not the AG.