[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7. The Members]
[C. Qualifications and Disqualifications]
[§ 9. In General; House as Judge of Qualifications]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 743-756]
CHAPTER 7
The Members
C. QUALIFICATIONS AND DISQUALIFICATIONS
Sec. 9. In General; House as Judge of Qualifications
The Constitution requires three standing qualifications of
Members,(12) mandates that they swear to an oath to uphold
the Constitution,(13) and prohibits them from holding
incompatible offices.(14) The House is constituted the sole
judge of the qualifications and disqualifications of its
Members.(15)
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12. Art. I, Sec. 2, clause 2.
13. Art. VI, clause 3.
14. Art. I, Sec. 6, clause 2.
15. Art. I, Sec. 5, clause 1. See Sevilla v Elizalde, 112 F2d 29, 38
(D.C. Cir. 1940) (determination of qualifications solely for
legislature); Application of James, 241 F Supp 858, 860 (D.N.Y.
1965) (no jurisdiction in federal courts to pass on
qualifications and legality of Representative); Keogh v Horner,
8 F Supp 933, 935 (D.Ill. 1934) (supreme power of Congress over
qualifications and legality of elections). Compare Powell v
McCormack, 395 U.S. 486 (1969) for limitations on the power of
the House to exclude a Member for qualifications not specified
in the Constitution (see Ch. 12, infra).
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Alleged failure to meet qualifications is raised, usually by
another Member-elect, before the House rises en masse to take the oath
of office.(16) If a challenge is made, the Speaker requests
the challenged Member-elect to stand aside. The Member-elect whose
qualifications are in doubt may then be authorized to take the oath of
office pursuant to a resolution so providing, which resolution may
either declare him entitled to the seat, or refer the question of his
final right to committee.(17) The House may also refuse to
permit him to take the oath, and may refer the question of his
qualifications and his right to take the oath to
committee.(18)
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16. See Sec. 9.1, infra.
17. Under the House rules, the Committee on House Administration, which
assumed the functions of the former Committee on the Election
of President, Vice President, and Representatives in Congress,
has jurisdiction over the qualifications of Members. House
Rules and Manual Sec. Sec. 693, 694 (1973).
18. For an instance where the taking of oath was deferred for Members-
elect whose qualifications were challenged, see Sec. 9.2,
infra.
The temporary deprivation to a state of its equal
representation in Congress when a Member-elect is refused
immediate or final right to a seat is a necessary consequence
of Congress' exercise of its constitutional power to judge the
qualifications, returns, and elections of its Members. Barry v
ex rel. Cunningham, 279 U.S. 615 (1929).
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If the House finds that a Member-elect has not met the quali
[[Page 744]]
fications for membership, or has failed to remove disqualifications, a
new election must be held. An opposing candidate with the next highest
number of votes cannot claim the right to the seat.(19)
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19. See 6 Cannon's Precedents Sec. Sec. 58, 59; 1 Hinds' Precedents
Sec. Sec. 323, 326, 450, 463, 469.
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Congress and the courts have uniformly rejected the idea that the
individual states could require qualifications for Representatives
above and beyond those enumerated in the Constitution.(20)
The
[[Page 745]]
states have regulatory powers over federal elections, but they may not
determine the qualifications for election to the office.(1)
Likewise, the qualifications and disqualifications of Delegates and
Resident Commissioners are specified and judged under the sole
jurisdiction of Congress itself.(2)
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20. For the congressional determination that states lack power over the
qualifications of Representatives, see 1 Hinds' Precedents
Sec. Sec. 414-416, 632.
See also, for lack of state power to add or determine
qualifications, Richardson v Hare, 381 Mich. 304, 160 N.W. 2d
883 (1968) and Danielson v Fitzsimons, 232 Minn. 149, 44 N.W.
2d 484 (1950).
Where a state court denied a candidate's eligibility for a
congressional seat, and a federal court had affirmed the
eligibility of another candidate identically situated, Supreme
Court Justice Black, sitting in Chambers, granted interim
relief. See Florida ex rel. Davis v Adams, 238 So. 2d 415 (Flat
1970), stay granted, 400 U.S. 1203 (1970) and Stack v Adams,
315 F Supp 1295 (N.D. Fla. 1970).
State attempts to require a candidate to be a resident of
the district where he sought a congressional seat have been
invalidated. Exon v Tiemann, 279 F Supp 609 (Neb. 1968); State
ex rel. Chavez v Evans, 79 N.M. 578, 446 P.2d 445 (1968);
Hellman v Collier, 217 Md. 93, 141 A.2d 908 (1958).
Where a candidate's affidavit stated he met all
qualifications, whether or not he was a ``sojourner'' was for
Congress and not for the courts to decide. Chavez v Evans, 79
N.M. 578, 446 P.2d 445 (1968).
Similarly, states cannot render ineligible for
congressional seats incumbents of state elective offices, State
ex rel. Pickrell, 92 Ariz. 243, 375 P.2d 728 (1962), or state
governors, State ex rel. Johnson v Crane, 197 P.2d 864 (Wyo.
1948), or state judges, Ekwell v Stadelman, 146 Or. 439, 30
P.2d 1037 (1934), Stockland v McFarland, 56 Ariz. 138, 106 P.2d
328 (1940).
States cannot add qualifications requiring affirmations of
loyalty, such as requiring affidavits showing lack of intent to
overthrow the government, Shub v Simpson, 76 A.2d 332 (Md.
1950), appeal dism'd, 340 U.S. 881 (1950); nor can they bar a
candidate for openly espousing international communism and
leading the American Communist Party. In re O'Connor, 17
N.Y.S.2d 758, 173 Misc. 419 (1940).
The states have attempted to regulate primaries in such a
manner as to set qualifications for election to a federal
office. However, a state cannot independently render a losing
candidate in a primary ineligible for election. See State ex
rel. Sundfor v Thorson, 72 N.D. 246, 6 N.W. 2d 89 (1942).
In general, any special or unusual conditions mandated by a
state act to regulate federal elections are invalid, insofar as
they directly or indirectly add to qualifications. State v
Russell, 10 Ohio S. & C.P. Dec. 225 (1900).
1. Where state statutes have purported only to regulate elections, and
not to set qualifications, they have been permitted. Thus, an
Illinois statute requiring petitions signed by a certain number
of voters, from a certain number of counties, did not violate
the exclusiveness of constitutional qualifications. MacDougall
v Green, 335 U.S. 281 (1948).
A state may require a five percent filing fee of a
candidate without adding to qualifications. Fowler v Adams, 315
F Supp 592 (Flat 1970), stay granted, 400 U.S. 1205 (J. Black
in Chambers) (1970), appeal dism'd, 400 U.S. 986 (1970); but
see Dillon v Fiorina, 340 F Supp 729 (N.M. 1972), where a six
percent filing fee for a Senatorial candidate was ruled
unconstitutional.
A state has the power to require each candidate to appoint
a campaign treasurer. State v McGucken, 244 Md. 70. 222 A.2d
693 (1966).
2. See Sec. 3, supra, for the qualifications of Delegates and Resident
Commissioners and for the method of determining those
qualifications.
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One important issue relating to the qualifications and
disqualifications of Members remains unresolved in part, although
clarified by the Supreme Court in 1969. That question concerns the
power of the House to exclude Members-elect for other than failure to
meet the express constitutional qualifications, and the right of the
House to add requirements in the nature of
qualifications.(3) In the case of Powell v
McCormack,(4) the Supreme Court held that the qualifications
of age, citizenship, and state inhabitancy were exclusive and that the
House could not exclude a Member-elect for allegedly improper conduct
while a Member of past Congresses.(5)
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3. For lengthy historical debate on the power of Congress to add
qualifications, see 1 Hinds' Precedents Sec. Sec. 414, 415,
443, 449, 451, 457, 458, 469, 478, 481, 484. For more recent
debate on the subject, relating to the attempt to exclude
Member-elect Adam Clayton Powell from Congress, see
Sec. Sec. 9.3, 9.4, infra.
For debate in the Senate on the power of Congress to add
qualifications, see Sec. Sec. 9.5, 9.6, infra. See also Hupman,
Senate Election, Expulsion and Censure Cases from 1789 to 1972,
S. Doc. No. 92-7, 92d Cong. 1st Sess. (1972).
4. 395 U.S. 486 (1969).
5. See 395 U.S. 486, 489-493.
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The court based its decision on the historical developments in the
[[Page 746]]
original Constitutional Convention and the intent of the framers of the
Constitution to prescribe exclusive qualifications and to limit the
House to judging the presence or absence of those standing
requirements.(6) The decision apparently precludes the
practice of the House or Senate, followed on numerous occasions during
the 19th and 20th centuries, of excluding Members-elect for prior
criminal, immoral, or disloyal conduct.(7) The court upheld
in Powell the interest of state voters in being represented by the
person of their choice, regardless of congressional dislike for the
Member's-elect moral, political, or religious activities.(8)
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6. 395 U.S. 486, 518-547. The court drew upon the practice of the
English and colonial parliaments, the debates of the
Constitutional Convention, the debates of the ratifying
conventions, and Hamilton and Madison's comments in the
Federalist Papers (see, in particular, Federalist No. 60).
7. 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).
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 exclude Senators-elect for failure to meet other than the
constitutional qualifications, see Sec. 9.5, infra (failure to
muster two-thirds majority) and Sec. 9.6, infra (Senator-elect
died while case pending).
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).
8. 395 U.S. 486, 547-548. As noted in the United States Constitution
Annotated, Library of Congress, S. Doc. No. 92-82, 92d Cong. 2d
Sess. (1972), the reasoning of the court in Powell may be
analogized to other cases holding that voters have the right to
cast a ballot for the person of their choice and the right to
have their ballot counted at undiluted strength. See Ex parte
Yarborough, 110 U.S. 651 (1884); United States v Classic, 313
U.S. 299 (1941); Wesberry v Sanders, 376 U.S. 1 (1964);
Williams v Rhodes, 393 U.S. 23 (1969).
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The Powell case did not discuss, however, other constitutional
provisions which may give rise to disqualifications, such as the
requirement to swear to an oath and the requirement of loyalty after
once
[[Page 747]]
having taken an oath.(9) The constitutional prohibition
against holding incompatible offices may disqualify a Member or Member-
elect,(10) and a person impeached by Congress may be
disqualified from again holding an office of honor, trust, or profit
under the United States.(11)
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9. These issues are analyzed in Sec. 12, infra. Unwillingness or lack
of mental capacity to take the oath could conceivably act as
disqualifications.
10. See Sec. 13 (incompatible offices) and Sec. 14 (military service),
infra.
11. U.S. Const. art. I, Sec. 3, clause 7.
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Cross References
Challenging the right to be sworn, see Ch. 2, supra.
Punishment, censure, or expulsion, see Ch. 12, infra.
House as judge of elections, see Ch. 9, infra.
Procedure in challenging qualifications before rules adoption, see Chs.
1 and 2, supra.
Collateral References
Curtis, Power of the House of Representatives to Judge the
Qualifications of Its Members, 45 Tex. L. Rev. 1199 and 1205
(1967).
Dempsey, Control by Congress Over the Seating and Disciplining of
Members, Ph. D. Dissertation, Univ. of Michigan (1956) (on file
with Library of Congress).
Dionisopoulos, A Commentary on the Constitutional Issues in the Powell
and Related Cases, 17 Jour. Pub. Law 103 (1968).
Federalist No. 60 (Hamilton), Modern Library (1937).
House Rules and Manual Sec. Sec. 46-51 (comment to U.S. Const. art. I,
Sec. 5, clause 1) (1973).
House Rules and Manual Sec. Sec. 9-13 (comment to U.S. Const. art. I,
Sec. 2, clause 2) (1973).
House Rules and Manual Sec. 35 (1973) (comment to U.S. Const. art. I,
Sec. 3, clause 3, Senate qualifications).
McGuire, The Right of the Senate to Exclude or Expel a Senator, 15
Georgetown L. Rev. 382 (1927).
Note, The Power of a House of Congress to Judge the Qualifications of
Its Members, 81 Harv. L. Rev. 673 (1968).
Schwartz, A Commentary on the Constitution of the United States, p. 97,
McMillan Co. (N.Y. 1963).
Story, Commentaries on the Constitution of the United States,
Sec. Sec. 616-624, Da Capo Press (N.Y. republication 1970).
United States Constitution Annotated, Library of Congress, S. Doc. No.
92-82, 92d Cong. 2d Sess. (1972).
Weeks, Adam Clayton Powell and the Supreme Court, Univ. Press of
Cambridge, Mass. (Boston 1971).
Wickersham, The Right of the Senate to Determine the Qualifications of
Its Members, S. Doc. No. 4, 70th Cong. 1st Sess. (1927), reprinted
at 88 Cong. Rec. 3047-50, 77th Cong. 2d
Sess. -------------------
Challenging Procedure
Sec. 9.1 Challenges by one Member-elect to the qualifications of
another are usually presented prior to the swearing in of Members-
elect en
[[Page 748]]
masse, whereupon the Speaker requests the challenged Member-elect
to stand aside.
On Jan. 10, 1967, Member-elect Lionel Van Deerlin, of California,
stated a challenge to the right of Member-elect Adam C. Powell, of New
York, to be sworn, based on charges allegedly disqualifying him to be a
Member of the House. The Speaker requested Mr. Powell to stand aside
while the oath was administered to the other Members-elect:
(12)
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12. 113 Cong. Rec. 14, 90th Cong. 1st Sess. For the Senate practice,
see Sec. Sec. 9.5, 9.6, infra.
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The Speaker: (13) According to the precedent, the
Chair will swear in all Members of the House at this time.
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13. John W. McCormack (Mass.).
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If the Members will rise, the Chair will now administer the
oath of office.
Objection to Administration of Oath
Mr. Van Deerlin: Mr. Speaker.
The Speaker: For what purpose does the gentleman from
California rise?
Mr. Van Deerlin: Mr. Speaker, upon my responsibility as a
Member-elect of the 90th Congress, I object to the oath being
administered at this time to the gentleman from New York [Mr.
Powell]. I base this upon facts and statements which I consider
reliable. I intend at the proper time to offer a resolution
providing that the question of eligibility of Mr. Powell to a seat
in this House be referred to a special committee----
The Speaker: Does the gentleman demand that the gentleman from
New York step aside?
Mr. Van Deerlin: Yes, Mr. Speaker.
The Speaker: The gentleman has performed his duties and has
taken the action he desires to take under the rule. The gentleman
from New York [Mr. Powell] will be requested to be seated during
the further proceedings.
Challenge to Qualifications by Citizen
Sec. 9.2 A challenge to the qualifications of a Representative-elect
may be instituted by the filing of a memorial or petition by a
citizen.
On Mar. 11, 1933,(14) Speaker Henry T. Rainey, of
Illinois, laid before the House a letter from the Clerk transmitting a
memorial and accompanying letters challenging the citizenship
qualifications of Henry Ellenbogen, Representative-elect from
Pennsylvania.
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14. 77 Cong. Rec. 239, 73d Cong. 1st Sess.
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Mr. Ellenbogen did not take the oath until Jan. 3, 1934, and was
not declared entitled to his seat until the adoption of a resolution to
that effect on June 15, 1934.(15)
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15. 78 Cong. Rec. 12193, 73d Cong. 2d Sess. See Sec. 10.1, infra, for
further discussion of Mr. Ellenbogen's qualifications for a
seat.
For instances of petitions submitted to the Senate by
private citizens, challenging the qualifications of Senators-
elect, see 81 Cong. Rec. 5633, 75th Cong. 1st Sess., June 14,
1937; 88 Cong. Rec. 2077, 2078, 77th Cong. 2d Sess., Mar. 9,
1942; and 93 Cong. Rec. 91-93, 80th Cong. 1st Sess., Jan. 4,
1947.
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[[Page 749]]
Power of House to Determine Qualifications
Sec. 9.3 The House decided in the 90th Congress that it could exclude,
by a majority vote, a duly qualified and certified Member-elect for
improper conduct while a former Member of the House.(16)
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16. The action of the House in excluding the Member-elect was ruled
unconstitutional by the Supreme Court in Powell v McCormack,
395 U.S. 486 (1969).
For the contrary views of two Members of Congress on the
power of the House to exclude Mr. Powell, see Curtis, Power of
the House of Representatives to Judge the Qualifications of Its
Members, 45 Tex. L. Rev. 1199 (1967) and Eckhardt, The Adam
Clayton Powell Case, 45 Tex. L. Rev. 1205 (1967).
For a prior instance (1919) where a Member-elect with
unquestioned credentials was denied a seat for other than
failure to meet the requirements of age, citizenship, or
inhabitancy, see 6 Cannon's Precedents Sec. Sec. 56-58.
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On Jan. 10, 1967, the convening day of the 90th Congress, a
challenge was made to the right to be sworn of Mr. Adam C. Powell, of
New York, whose credentials had been submitted to the House, and whose
qualifications of age, citizenship, and inhabitancy had been satisfied.
He stepped aside as the oath was administered to the other Members-
elect en masse.(17) The challenge to Mr. Powell's right to a
seat was based on his alleged misconduct in a prior Congress as a
Member of the House and Chairman of a committee, and on his avoidance
of state court processes.
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17. 113 Cong. Rec. 14, 90th Cong. 1st Sess.
Although some Members challenged the fulfillment by Mr.
Powell of the inhabitancy qualification, that ground for
exclusion was not considered by the House or the special
committee established to investigate his right to a seat. See
113 Cong. Rec. 4772, 90th Cong. 1st Sess., Feb. 28, 1967, and
the resolution offered on Mar. 1, 1967, 113 Cong. Rec. 4993,
90th Cong. 1st Sess.
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House Resolution No. 1 was then offered, which would have permitted
Mr. Powell to take the oath but referred the question of his final
right to a seat to a special committee. The House rejected the previous
question on House Resolution No. 1 and adopted a substitute amendment
referring both Mr. Powell's right to be sworn and his final right to
[[Page 750]]
be seated to a special committee: (18)
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18. 113 Cong. Rec. 14-26, 90th Cong. 1st Sess.
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Mr. Gerald R. Ford [of Michigan]: Mr. Speaker, I offer a
substitute for House Resolution 1.
The Clerk read as follows:
Amendment offered by Mr. Gerald R. Ford as a substitute for
House Resolution 1: Strike out all after the resolving clause
and insert the following:
``Resolved, That the question of the right of Adam Clayton
Powell to be sworn in as a Representative from the State of New
York in the Ninetieth Congress, as well as his final right to a
seat therein as such Representative, be referred to a special
committee of nine Members of the House to be appointed by the
Speaker, four of whom shall be Members of the minority party
appointed after consultation with the minority leader. Until
such committee shall report upon and the House shall decide
such question and right, the said Adam Clayton Powell shall not
be sworn in or permitted to occupy a seat in this House.
``For the purpose of carrying out this resolution the
committee, or any subcommittee thereof authorized by the
committee to hold hearings, is authorized to sit and act during
the present Congress at such times and places within the United
States, including any Commonwealth or possession thereof, or
elsewhere, whether the House is in session, has recessed, or
has adjourned, to hold such hearings, and 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; except that neither the committee nor any
subcommittee thereof may sit while the House is meeting unless
special leave to sit shall have been obtained from the House.
Subpoenas may be issued under the signature of the chairman of
the committee or any member of the committee designated by him,
and may be served by any person designated by such chairman or
member.
``Until such question and right have been decided, the said
Adam Clayton Powell shall be entitled to all the pay,
allowances, and emoluments authorized for Members of the House.
``The committee shall report to the House within five weeks
after the members of the committee are appointed the results of
its investigation and study, together with such recommendations
as it deems advisable. Any such report which is made when the
House is not in session shall be filed with the Clerk of the
House.''
On Mar. 1, 1967, the special committee on the right of Mr. Powell
to his seat offered House Resolution No. 278, which declared Mr. Powell
entitled to his seat on the ground that he met all constitutional
qualifications for membership, but which imposed various penalties for
congressional misconduct: (19)
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19. 113 Cong. Rec. 4997, 90th Cong. 1st Sess.
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Mr. [Emanuel] Celler [of New York]: Mr. Speaker, pursuant to
House Resolution 1, I call up for immediate consideration the
following privileged resolution, House Resolution 278, which is at
the Clerk's desk.
The Clerk read the resolution, as follows:
[[Page 751]]
Whereas,
The Select Committee appointed pursuant to H. Res. 1 (90th
Congress) has reached the following conclusions:
First, Adam Clayton Powell possesses the requisite
qualifications of age, citizenship and inhabitancy for
membership in the House of Representatives and holds a
Certificate of Election from the State of New York.
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; Now, therefore, be it
Resolved,
1. That the Speaker administer the oath of office to the
said Adam Clayton Powell, Member-elect from the Eighteenth
District of the State of New York.
2. That upon taking the oath as a Member of the 90th
Congress the said Adam Clayton Powell be brought to the bar of
the House in the custody of the Sergeant-at-Arms of the House
and be there publicly censured by the Speaker in the name of
the House.
3. That Adam Clayton Powell, as punishment, pay to the
Clerk of the House to be disposed of by him according to law,
Forty Thousand Dollars ($40,000.00). The Sergeant-at-Arms of
the House is directed to deduct One Thousand Dollars
($1,000.00) per month from the salary otherwise due the said
Adam Clayton Powell and pay the same to said Clerk, said
deductions to continue while any salary is due the said Adam
Clayton Powell as a Member of the House of Representatives
until said Forty Thousand Dollars ($40,000.00) is fully paid.
Said sums received by the Clerk shall offset to the extent
thereof any liability of the said Adam Clayton Powell to the
United States of America with respect to the matters referred
to in the above paragraphs Third and Fourth of the preamble to
this Resolution.
4. That the seniority of the said Adam Clayton Powell in
the House of Representatives commence as of the date he takes
the oath as a Member of the 90th Congress.
5. That if the said Adam Clayton Powell does not present
himself to take the oath of office on or before March 13, 1967,
the seat of the Eighteenth District of the State of New York
shall be deemed vacant and the Speaker shall notify the
Governor of the State of New York of the existing vacancy.
[[Page 752]]
After debate,(20) the House refused to order the
previous question on the original resolution and agreed to an amendment
in the nature of a substitute, stating the abuses Mr. Powell had
committed, and excluding him from membership in the House:
(1)
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20. 113 Cong. Rec. 4997-5039, 90th Cong. 1st Sess., Mar. 1, 1967. For a
brief prepared by the Library of Congress buttressing the
authority of Congress to exclude Members-elect for misconduct,
see id. at pp. 5008-10.
1. Id. at p. 5038. The text of the substitute resolution appears id.
at p. 5020.
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Mr. [Thomas B.] Curts [of Missouri]: Mr. Speaker, I offer an
amendment as a substitute for the resolution offered by the
Committee.
The Clerk read as follows:
Amendment offered by Mr. Curtis as a substitute for House
Resolution 278:
Resolved, That said Adam Clayton Powell, Member-elect from
the 18th District of the State of New York, be and the same
hereby is excluded from membership in the 90th Congress and
that the Speaker shall notify the Governor of the State of New
York of the existing vacancy.
While the amendment was pending, Speaker John W. McCormack, of
Massachusetts, stated in response to a parliamentary inquiry that
adoption of the resolution would require a majority vote:
Mr. Celler: Mr. Speaker, a parliamentary inquiry.
Mr. Curtis: Mr. Speaker, I yield to the gentleman for the
purpose of making a parliamentary inquiry.
The Speaker: The gentleman will state his parliamentary
inquiry.
Mr. Celler: Anticipating that the Member-elect from the 18th
District of New York satisfies the Constitution, and a question is
raised in this resolution, would the resolution offered by the
gentleman from Missouri require a two-thirds vote, in the sense
that it might amount to an expulsion?
The Speaker: In response to the parliamentary inquiry, on the
amendment of the gentleman from Missouri [Mr. Curtis], action by a
majority vote would be in accordance with the rules.
Speaker McCormack also overruled a point of order against the
resolution based on the theory that the resolution was beyond the power
of the House to adopt:
Mr. [Phillip] Burton of California: Mr. Speaker I raise a point
of order.
The Speaker: The gentleman will state his point of order.
Mr. Burton of California: In view of the fact that this
resolution, among other things, states that the Member from New
York is ineligible to serve in the other body, and therefore
clearly beyond our power to so vote; and in addition to that fact
it anticipates election results in the 18th District of New York, a
matter upon which we cannot judge at this time, I raise the point
of order that the resolution is an improper one for the House to
consider, and that it clearly exceeds our authority.
The Speaker: The Chair will observe to the gentleman that if
the
[[Page 753]]
point of order would be in order it would have been at a previous
stage in the proceedings, and the gentleman's point of order comes
too late.
Mr. Burton of California: May I make a parliamentary inquiry,
Mr. Speaker?
The Speaker: The gentleman will state the parliamentary
inquiry.
Mr. Burton of California: Am I not correct in my statement that
under the resolution on which we are about to vote, the only clear
meaning of it would preclude the gentleman from New York from
serving in the other body.
The Speaker: The Chair would state that that is not a
parliamentary inquiry. The Chair cannot pass upon that question.
Following the adoption of the resolution as amended, the House
agreed to the preamble to the resolution.
Sec. 9.4 A qualified Member-elect who had been duly elected to the 90th
Congress and who had been excluded by the House for improper
conduct while a former Member instituted a suit to enjoin the
Speaker, other Members, and House officers from enforcing the
resolution of exclusion.
On Mar. 9, 1967, Speaker John W. McCormack, of Massachusetts,
announced to the House that a suit had been instituted against him, and
against officers and other Members of the House, in order to enjoin the
enforcement of a resolution excluding Mr. Adam C. Powell, of New York,
from House membership.(2) Mr. Powell's complaint sought a
writ of mandamus directing the Speaker to administer him the oath of
office as a Member of the 90th Congress.(3) As to the age,
citizenship, and inhabitancy requirements of the Constitution, the
complaint stated:
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2. 113 Cong. Rec. 6035, 90th Cong. 1st Sess.
3. Subpenas to the Speaker and others, the complaint in the suit, and
application (with memorandum) for the convening of a three-
judge federal court were inserted in the Record id. at pp.
6036-40.
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. . . These are the sole and only qualifications prescribed by
the Constitution for members of the House of Representatives, and
they cannot be altered, modified, expanded or changed by the
Congress of the United States. The House found that plaintiff Adam
Clayton Powell, Jr. possesses the requisite qualifications for
membership in the House (House Resolution No. 278 . . .) but
nonetheless voted to exclude him.(4)
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4. 113 Cong. Rec. 6037, 90th Cong. 1st Sess.
Further briefs, memoranda, and the opinion of the United
States District Court Judge dismissing the complaint are
reprinted at 113 Cong. Rec. 8729-62, 90th Cong. 1st Sess., Apr.
10, 1967.
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[[Page 754]]
On Jan. 3, 1969, the convening day of the 91st Congress, the House
agreed to a resolution authorizing Speaker John W. McCormack, of
Massachusetts, to administer the oath to Mr. Powell, but imposing
various penalties against him.(5)
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5. 115 Cong. Rec. 33, 34, 91st Cong. 1st Sess. (see H. Res. 2). For
further discussion, see Ch. 12, infra.
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Parliamentarian's Note: The suit filed by Mr. Powell in the United
States District Court for the District of Columbia eventually reached
the United States Supreme Court, which held that the House could
exclude a Member-elect only for failure to satisfy one of the
qualifications mandated in the Constitution. The suit was still pending
when Mr. Powell was sworn in at the commencement of the 91st
Congress.(6)
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6. Powell v McCormack, 395 U.S. 486 (1969). The Court dismissed the
complaint as to the House Members named, since they were immune
from inquiry under the Speech and Debate Clause of the
Constitution. However, the presence of House officers as
defendants gave the Court jurisdiction to enter a declaratory
judgment against the House action. See Ch. 12, infra.
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Senate Determinations as to Qualifications
Sec. 9.5 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 without
prejudice, despite letters, protests, and affidavits from citizens of
North Dakota recommending that he be denied a congressional seat
because of campaign fraud and conduct involving moral
turpitude.(7)
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7. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
The petition challenging Senator Langer's qualifications
appears in the Record at 88 Cong. Rec. 2077, 77th Cong. 2d
Sess., Mar. 9, 1942.
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The final right of Senator Langer to his seat was not acted upon
until Mar. 9, 1942, when the Committee on Privileges and Elections
offered Senate Resolution No. 220:
Resolved, That the case of William Langer does not fall within
the constitutional provisions for expulsion or any punishment by
two-thirds vote, because Senator Langer is neither charged with nor
proven to have committed disorderly behavior during his membership
in the Senate.
Resolved, That William Langer is not entitled to be a Senator
of the United
[[Page 755]]
States from the State of North Dakota.(8)
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8. 88 Cong. Rec. 2077, 77th Cong. 2d Sess.
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Extensive debate, on the charges against Senator Langer, on the
procedure to be followed by the Senate in determining his right to a
seat, and on the authority of the Senate to deny him a seat for other
than failure to meet express constitutional qualifications, consumed
Mar. 9 through Mar. 27, 1942.(9)
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9. Id. at pp. 2077-105, 2165-79, 2239-62, 2328-44, 2382-406, 2472-94,
2630-52, 2699-720, 2759-67, 2768-79, 2791-806, 2842-63, 2914-
23, 2959-78, 3038-65. For debate on the constitutional issues
and parliamentary precedents, see id. at pp. 2390-406. The
minority report of the Committee on Privileges and Elections,
contending that the Senate could only exclude for failure to
meet express constitutional qualifications, is set out id. at
pp. 2630-34.
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On Mar. 27, the Senate agreed to a resolution requiring a two-
thirds vote for expulsion of Senator Langer.(10) On the same
day, the Senate failed to pass by a two-thirds vote the resolution to
expel Senator Langer.(11)
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10. Id. at p. 3064.
The Senate had decided in 1907 that a two-thirds vote was
required to expel a Senator who had already taken the oath. 1
Hinds' Precedents Sec. Sec. 481-484.
11. 88 Cong. Rec. 3065, 77th Cong. 2d Sess.
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Sec. 9.6 A Senator-elect whom members of the Senate sought to exclude
from the 80th Congress, for allegedly corrupt campaign practices,
died while his qualifications for a seat were still undetermined.
On Jan. 3, 1947, at the convening of the first session of the 80th
Congress, the right to be sworn of Theodore Bilbo, Senator-elect from
Mississippi, was challenged. The challenge was made through Senate
Resolution No. 1, which alleged Mr. Bilbo had engaged in corrupt and
fraudulent campaign practices and had conspired to prevent the exercise
of voting rights of certain citizens.(12) Extensive debate
occurred on Jan. 3 and 4 in relation to the right of Mr. Bilbo to be
sworn and in relation to the charges and petitions against
him.(13) During the debate, the question was discussed as to
whether Mr. Bilbo could be excluded from the Senate for his allegedly
improper conduct, without violating the principle of the exclusivity of
the constitutional qualifications.(14)
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12. 93 Cong. Rec. 7, 80th Cong. 1st Sess.
13. Id. at pp. 7-33, Jan. 3, and at pp. 71-109, Jan. 4. The petition
submitted to the Senate by concerned private citizens which
challenged Mr. Bilbo's entitlement to a seat appears in the
Record id. at pp. 91-93.
14. Id. at pp. 14-19.
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[[Page 756]]
The question of Mr. Bilbo's right to a seat, and his right to take
the oath, were laid on the table pending his recovery from a medical
operation.(15) Mr. Bilbo died on Aug. 21, 1947, without
further action being taken by the Senate on his right to a
seat.(16)
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15. Id. at p. 109.
16. See the announcement of Nov. 17, 1947, 93 Cong. Rec. 10569, 80th
Cong. 1st Sess.
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Qualifications of Senate Appointee
Sec. 9.7 The validity of an appointment to the Senate may be challenged
on the ground that the appointee does not meet the qualifications
required by state law.(17)
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17. Under U.S. Const. amend. 17, a state legislature may empower the
state executive to make temporary appointments to the Senate in
the event of a vacancy, with the legislature setting
qualifications for appointees. However, in the case of a House
vacancy, an election must be held, with candidates possessing
the constitutional qualifications. See U.S. Const. art. I,
Sec. 2, clause 4.
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On Aug. 5, 1964,(18) Senator Everett M. Dirksen, of
Illinois, challenged the validity of the appointment of Pierre
Salinger, appointed to fill a vacancy in the Senate caused by the death
of Senator Clair Engle, of California. Senator Dirksen's challenge was
based on the fact that the California code required that an appointee
by the governor must be an elector, and that an elector must be a
resident for one year before the day of election. It was claimed that
Mr. Salinger was not a resident of California for a period of one year
prior to appointment.
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18. 110 Cong. Rec. 18107-20, 88th Cong. 2d Sess.
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The Senate, after lengthy debate, agreed to a motion that the oath
be administered to Mr. Salinger, and that his credentials be referred
to the Committee on Rules and Administration.