Overshadowed by the broader defection among the GOP rank and file over ethics rules changes Monday night was Rep. Dana Rohrabacher’s (R-Calif.) unsuccessful attempt to strip a leadership-backed provision from the rules package that would allow the House to dramatically alter what constitutes a quorum.

“We don’t believe the House has the authority to change the quorum by a House rule,” said Rick Dykema, Rohrabacher’s chief of staff. He added that his boss believes the proposed rules change is “blatantly unconstitutional.”

A number of lawmakers and a half-dozen constitutional scholars interviewed by Roll Call agree. But Rohrabacher was unable to convince his Conference to drop the language from the rules package that will be voted on this afternoon.

The so-called provisional quorum rule would allow the chamber to conduct business with only a handful of lawmakers. The change was designed to allow the House to function if a catastrophe were to incapacitate large numbers of lawmakers, but it is written in such a way as to allow the majority party to unilaterally revise the quorum downward, theoretically to as little as a quorum of two, or even one.

The decision by the Speaker, or his designee, is not subject to appeal. The proposed rule requires only consultation with — but not the consent of — the minority party.

Rules Chairman David Dreier (R-Calif.) has repeatedly maintained the provision’s constitutionality, stating that the framers designed the Constitution to allow for its preservation during unforeseen circumstances and that his rules change simply embodies Alexander Hamilton’s assertion that “every government ought to contain in itself the means of its own preservation.”

Rohrabacher and the constitutional scholars don’t dispute that assertion as much as they insist the change be embodied in some kind of constitutional amendment giving the House the authority to conduct business with a quorum of less than a majority of the whole body.

As written in Article I, the Constitution only prescribes two circumstances in which either chamber can proceed in the absence of a quorum: to compel the attendance of absent Members and to adjourn from daily activity.

“The quorum is established in the Constitution as a majority of the House, not a majority of those who show up after four days,” Dykema added. “The proper way of changing that is to amend the Constitution to allow each house to establish a provisional quorum under what circumstances they believe are constitutionally appropriate.”

In a “Dear Colleague” letter Monday, Rep. Brian Baird (D-Wash.) urged Members to vote against the GOP rules package because of the provision.

Referencing today’s swearing-in, Baird wrote that each Member “will swear to uphold and defend the Constitution of the United States. Following this ceremony, we will be asked to vote for a rules package which directly violates the Constitution. Specifically, the proposed rules for the 109th Congress purportedly allow a quorum to consist of ‘the number of Representatives responding to [the] call of the House.’

“This revision contradicts a Constitutional mandate,” Baird added. “The proposed rule seeks to allow ‘a small number’ not merely to adjourn or compel attendance, as the Constitution stipulates, but to enact laws, declare war, impeach the President and fulfill all other Article I responsibilities.”

In addition to the scholars interviewed by Roll Call, Sen. John Cornyn (R-Texas) solicited more than a half dozen letters from law professors and other experts across the ideological spectrum about the House proposal.

Cornyn supports a constitutional amendment to solve the complex problem of Congressional continuity if a disaster struck the legislative branch.

“While compelling justifications may sometimes salvage the constitutionality of otherwise unconstitutional acts, I do not believe they can save the House proposal,” wrote Michael Gerhardt, a law professor at the College of William & Mary. “The problem is that the proposal seeks to do nothing less than to re-define the requisite conditions for lawmaking.”