[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[C. Qualifications and Disqualifications]
[§ 11. Conviction of Crime; Past Conduct]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 763-769]
CHAPTER 7
The Members
C. QUALIFICATIONS AND DISQUALIFICATIONS
Sec. 11. Conviction of Crime; Past Conduct
Although the Senate or the House may expel a seated Member for
disorderly conduct committed during his term,(8) Congress
has no general authority to exclude a Member-elect solely for criminal
or immoral conduct committed prior to the convening of the Congress to
which elected.(9) Although the Senate and the House have
affirmed their power
[[Page 764]]
to exclude for improper conduct on many occasions before 1936, and on
several occasions since 1936,(10) the Supreme Court decided
in 1969 that the House or the Senate was limited to determining whether
a Member-elect had satisfied the standing qualifications of age,
citizenship, and residency.(11)
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8. U.S. Const. art. I, Sec. 5, clause 2. See, in general, Ch. 12,
infra.
9. For a discussion of the limits on Congress to add qualifications to
those specified in the Constitution, see Sec. 9, supra. See
also House Rules and Manual Sec. Sec. 10-12 (comment to U.S.
Const. art. I, Sec. 2, clause 2, setting qualifications for
Members) (1973).
For the views of constitutional commentators, see
Federalist No. 60 (Hamilton), Modern Library (1937); Story,
Commentaries on the Constitution of the United States,
Sec. Sec. 616-624, Da Capo Press (N.Y. repub. 1970); Schwartz,
A Commentary on the Constitution of the United States, p. 97,
McMillan Co. (N.Y. 1963); Dempsey, Control by Congress Over the
Seating and Disciplining of Members, Ph.D. dissertation,
University of Michigan (1956) (on file with Library of
Congress); Note, The Right of Congress to Exclude Its Members,
33 Va. L. Rev. 322 (1947); Note, The Power of the House of
Congress to Judge the Qualifications of Its Members, 81 Harv.
L. Rev. 673 (1968); Dionisopoulos, A Commentary on the
Constitutional Issues in the Powell and Related Cases, 17
Journal Public Law 103 (1968).
10. For exclusions by the House, see 1 Hinds' Precedents Sec. 449
(1868, Civil War disloyalty); Sec. 451 (1862, Civil War
disloyalty); Sec. 459 (1868, Civil War disloyalty); Sec. 620
(1869, Civil War disloyalty); Sec. 464 (1870, ``infamous
character,'' selling appointments to West Point); Sec. 473
(1882, practice of polygamy by Delegate-elect); Sec. Sec. 474-
480 (1900, practice and conviction of polygamy); 6 Cannon's
Precedents Sec. Sec. 56-59 (1919, acts of disloyalty
constituting criminal conduct); Sec. 11.1, infra (1967, abuse
of power while past Member and committee chairman).
The Senate has excluded one Senator-elect for disloyalty
(see 1 Hinds' Precedents Sec. 457 [1867]), but seated a
Senator-elect accused of polygamy (see 1 Hinds' Precedents
Sec. 483 [1907]). For the two attempts in the Senate since 1936
to deny seats to Senators-elect for prior improper conduct, see
Sec. Sec. 11.2, 11.3, infra. In another instance, a Senator
whose character qualifications were challenged by petition was
held entitled to his seat without discussion in the Senate (see
81 Cong. Rec. 5633, 75th Cong. 1st Sess., June 14, 1937).
11. Powell v McCormack, 395 U.S. 486 (1969).
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The Supreme Court case arose from the exclusion of a Member-elect
(Adam Clayton Powell) in the 90th Congress for improper conduct as a
Member of past Congresses.(12) The abuses charged against
the Member-elect never became the subject of criminal conviction. The
House decided not only that it could exclude for abuse of power while a
past Congressman and past committee chairman, but also that it could
exclude by a simple majority vote. In denying such congressional power,
the Supreme Court stated that the qualifications of the Constitution
were exclusive and that the Congress could not deny to constituents
their choice of a Representative, even if the majority of the House
found his past conduct so criminal or so immoral as to render him
unsuited for membership.
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12. See Sec. 9.3, supra, for a complete synopsis of the House
proceedings leading to the vote on exclusion, and see Sec. 9.4,
supra, for a complete synopsis of the litigation by the
excluded Member against House Members and officers.
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On two occasions since 1936, proceedings in the Senate have sought
to deny seats to Senators-elect for immoral or criminal activity
committed prior to the convening of Congress.(13) Both
attempts were unsuccessful.
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13. See Sec. Sec. 11.2, 11.3, infra.
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[[Page 765]]
Congress may have the power to exclude a Member-elect for improper
conduct when such conduct relates to campaign
activities.(14) Congress is the sole judge of the elections
of its Members,(15) and regulation of elections is a subject
of various federal statutes. If the House found that a Member had
conducted such a corrupt or fraudulent campaign as to render the
election invalid, the House could deny a seat to such Member-elect, not
for disqualifications but for failure to be duly
elected.(16)
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14. See Ch. 12, infra.
15. U.S. Const. art. I, Sec. 5, clause 1.
16. See Ch. 8, infra, for elections and election campaigns and Ch. 9,
infra, for election contests.
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Generally, any state constitution (17) or any statute
(18) which disqualifies a congressional candidate for
criminal conviction is invalid and does not operate to disqualify the
candidate for a congressional seat.
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17. See Sec. 11.4, infra, for an occasion where the House declined to
exclude a Member-elect whose citizenship had been challenged,
since he had been convicted of a felony and his state's
constitution stripped of citizenship persons convicted of
felonies.
18. The Supreme Court held in Burton v U.S., 202 U.S. 344 (1906) that
although a statute barred a Congressman convicted of accepting
a bribe from holding office, a judgment of conviction did not
automatically expel him or compel Congress to expel him.
A state cannot by statute prevent a candidate from seeking
office by virtue of his having been convicted of a felony.
Application of Ferguson, 294 N.Y.S. 2d 174, 57 Misc. 2d 1041
(1968).
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Cross References
Conduct, punishment, censure, and expulsion, see Ch. 12, infra.
Charges against Member as raising personal privilege, see Ch. 11,
infra.
Improper campaign practices, see Ch. 8, infra.
Impeachment and improper conduct, see Ch. 14, infra.
Resignations after conviction of crime, see Ch. 37, infra.
Challenging the right to be sworn, based on improper conduct, see Ch.
2, supra.
Demotions in seniority for improper conduct, see Sec. 2, supra.
Collateral Reference
Sense of the House, Member's actions, convictions of certain crimes, H.
Rept. No. 92-1039, 92d Cong. 1st Sess.
(1972). -------------------
Exclusion for Improper Conduct
Sec. 11.1 The House excluded in the 90th Congress a Member-elect for
avoidance of state court process and abuse of his congressional
position while a Member of past Congresses.(19)
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19. For a complete synopsis of the proceedings leading to Mr. Powell's
exclusion, and of the litigation filed by him against the
House, see Sec. Sec. 9.3, 9.4, supra.
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[[Page 766]]
On Mar. 1, 1967, the House excluded Member-elect Adam C. Powell, of
New York, through passage of House Resolution No. 278 by a majority
vote. The preamble of the resolution read in part as follows:
Second, Adam Clayton Powell has repeatedly ignored the
processes and authority of the courts in the State of New York in
legal proceedings pending therein to which he is a party, and his
contumacious conduct towards the court of that State has caused him
on several occasions to be adjudicated in contempt thereof, thereby
reflecting discredit upon and bringing into disrepute the House of
Representatives and its Members.
Third, as a Member of this House, Adam Clayton Powell
improperly maintained on his clerk-hire payroll Y. Marjorie Flores
(Mrs. Adam C. Powell) from August 14, 1964, to December 31, 1966,
during which period either she performed no official duties
whatever or such duties were not performed in Washington, D.C. or
the State of New York as required by law. . . .
Fourth, as Chairman of the Committee on Education and Labor,
Adam Clayton Powell permitted and participated in improper
expenditures of government funds for private purposes.
Fifth, the refusal of Adam Clayton Powell to cooperate with the
Select Committee and the Special Subcommittee on Contracts of the
House Administration Committee in their lawful inquiries authorized
by the House of Representatives was contemptuous and was conduct
unworthy of a Member. . . .(20)
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20. 113 Cong. Rec. 4997, 90th Cong. 1st Sess. (original resolution
introduced by the special committee on the right of Mr. Powell
to his seat). The House retained the preamble and adopted an
amendment, text id. at p. 5020, which excluded Mr. Powell from
the House.
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Exclusion of Senator for Improper Conduct
Sec. 11.2 A Senator-elect whom Members of the Senate sought to exclude
from the 80th Congress, for corrupt campaign practices and past
abuse of congressional office, died while his qualifications for a
seat were still undetermined.
On Jan. 4, 1947, at the convening of the 80th Congress, the right
to be sworn of Mr. Theodore Bilbo, of Mississippi, was laid on the
table and not taken up again due to his intervening
death.(1)
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1. 93 Cong. Rec. 109, 80th Cong. 1st Sess.
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The right to be sworn of Mr. Bilbo had been challenged through
Senate Resolution No. 1, whose preamble read as follows:
Whereas the Special Committee To Investigate Senatorial
Campaign Expenditures, 1946, has conducted an in
[[Page 767]]
vestigation into the senatorial election in Mississippi in 1946,
which investigation indicates that Theodore G. Bilbo may be guilty
of violating the Constitution of the United States, the statutes of
the United States, and his oath of office as a Senator of the
United States in that he is alleged to have conspired to prevent
citizens of the United States from exercising their constitutional
rights to participate in the said election; and that he is alleged
to have committed violations of Public Law 252, Seventy-sixth
Congress, commonly known as the Hatch Act; and
Whereas the Special Committee To Investigate the National
Defense Program has completed an inquiry into certain transactions
between Theodore G. Bilbo and various war contractors and has found
officially that the said Bilbo, ``in return for the aid he had
given certain war contractors and others before Federal
departments, solicited and received political contributions,
accepted personal compensation, gifts, and services, and solicited
and accepted substantial amounts of money for a personal charity
administered solely by him'' . . . and . . . ``that by these
transactions Senator Bilbo misused his high office and violated
certain Federal statutes''; and
Whereas the evidence adduced before the said committees
indicates that the credentials for a seat in the Senate presented
by the said Theodore G. Bilbo are tainted with fraud and
corruption; and that the seating of the said Bilbo would be
contrary to sound public policy, harmful to the dignity and honor
of the Senate, dangerous to the perpetuation of free Government and
the preservation of our constitutional liberties. . .
.(2)
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2. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
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Sec. 11.3 In the 77th Congress, the Senate failed to expel, by the
required two-thirds vote, a Senator whose qualifications had been
challenged by reason of election fraud and of conduct involving
moral turpitude.
On Jan. 3, 1941, at the convening of the 77th Congress, Senator
William Langer, of North Dakota, took the oath of office, despite
charges from the citizens of his state recommending he be denied a
congressional seat because of campaign fraud and past conduct involving
moral turpitude.(3)
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3. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
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The petition against Senator Langer charged: control of election
machinery; casting of illegal election ballots; destruction of legal
election ballots; fraudulent campaign advertising; conspiracy to avoid
federal law; perjury; bribery; fraud; promises of political
favors.(4)
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4. 88 Cong. Rec. 2077-80, 77th Cong. 2d Sess., Mar. 9, 1942.
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After determining that a two-thirds vote was necessary for
expulsion,(5) the Senate failed to expel Senator
Langer.(6)
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5. 88 Cong. Rec. 3064, 77th Cong. 2d Sess., Mar. 27, 1942.
6. Id. at p. 3065.
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[[Page 768]]
Criminal Conviction
Sec. 11.4 Where the right to a seat of a Representative-elect was
challenged on the ground that he had forfeited his rights as a
citizen by reason of a felony conviction, the House declined to
exclude him.(7)
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7. On several occasions, since 1921, Members of the House have been
convicted of crimes without House disciplinary action being
taken. See the remarks of Mr. John Conyers, Jr. (Mich.) 113
Cong. Rec. 5007, 90th Cong. 1st Sess., Mar. 1, 1967.
On one occasion, a charge that a Member had been convicted
of playing poker prior to his becoming a Member was held not to
involve his representative capacity. See 78 Cong. Rec. 2464,
73d Cong. 2d Sess., Feb. 13, 1934.
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On Mar. 10, 1933,(8) the right of Francis H. Shoemaker,
of Minnesota, to be sworn in was challenged on the ground that he had
been convicted of a felony, and that under the Minnesota state
constitution any felony conviction resulted in the loss of citizenship,
unless restored by the state legislature.(9)
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8. 77 Cong. Rec. 131-39, 73d Cong. 1st Sess.
9. Id. at p. 134.
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Since, however, Mr. Shoemaker had been convicted of a federal
offense (mailing libelous and indecent matter on wrappers or envelopes)
and not a state felony, and the conviction involved no moral turpitude,
the House adopted a resolution authorizing Mr. Shoemaker to be sworn
but referring the question of his final right to a seat to an elections
committee.(10)
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10. Id. at pp. 137-39.
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No further action was taken and Mr. Shoemaker served a full term as
a Member of the House.
Sec. 11.5 The House adopted a resolution expressing the sense of the
House that Members convicted of certain felonies should refrain
from participating in committee business and from voting in the
House until the presumption of innocence was reinstated or until
the Member was re-elected to the House.
On Nov. 14, 1973,(11) the House adopted House Resolution
700, providing for the consideration of a resolution expressing the
sense of the House with respect to actions which should be taken by
Members upon being convicted of certain crimes. Mr. Charles M. Price,
of Illinois, of the reporting committee (Standards of Official Conduct)
asked unanimous consent that the resolution provided
[[Page 769]]
for, House Resolution 128, be considered in the House as in the
Committee of the Whole. The request was granted, and the House adopted
the following resolution:
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11. 119 Cong. Rec. 36943, 36944, 93d Cong. 1st Sess.
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H. Res. 128
Resolved, That it is the sense of the House of Representatives
that any Member of, Delegate to, or Resident Commissioner in, the
House of Representatives who has been convicted by a court of
record for the commission of a crime for which a sentence of two or
more years' imprisonment may be imposed should refrain from
participation in the business of each committee of which he is then
a member and should refrain from voting on any question at a
meeting of the House, or of the Committee of the Whole House,
unless or until judicial or executive proceedings result in
reinstatement of the presumption of his innocence or until he is
reelected to the House after the date of such conviction. This
resolution shall not affect any other authority of the House with
respect to the behavior and conduct of its Members.(12)
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12. For a similar resolution reported in a preceding Congress but not
considered in the House, see H. Res. 933, 92d Cong.
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