[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 12. Conduct or Discipline of Members, Officers, or Employees]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1697-1698]
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
[[Page 1697]]
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Commentary and editing by Robert L. Tienken, LL.B.
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A. Introductory; Particular Kinds of Misconduct
Sec. 1. In General; Codes of Conduct
Sec. 2. Committee Functions
Sec. 3. Violations of Statutes
Sec. 4. Violations of House Rules
Sec. 5. Abuse of Mailing or Franking Privileges
Sec. 6. Absences From the House; Indebtedness
Sec. 7. Misconduct in Elections or Campaigns
Sec. 8. Financial Matters; Disclosure Requirements
Sec. 9. Abuses in Hiring, Employment, and Travel
Sec. 10. Communications With Federal Agencies
Sec. 11. Acceptance of Foreign Gifts and Awards
B. Nature and Forms of Disciplinary Measures
Sec. 12. In General; Penalties
Sec. 13. Expulsion
Sec. 14. Exclusion
Sec. 15. Suspension of Privileges
Sec. 16. Censure; Reprimand
Sec. 17. Imposition of Fine
Sec. 18. Deprivation of Seniority Status
Appendix
DESCHLER'S PRECEDENTS
[[Page 1698]]
INDEX TO PRECEDENTS
Alford, Dale, pre-election irregularity by, Sec. 7.2
Apology, effect on censure proceedings, Sec. 16
Apology, requirement of, as discipline, Sec. 12
Arrest, privilege from, Sec. 3.1
Auto-leasing agreements, improprieties in, Sec. 8.3
Campaign literature, unauthorized distribution of, Sec. 7.2
Censure of Member, administration by Speaker, Sec. 16
Censure of Senators, Sec. Sec. 16.2, 16.3
Clerk-hire guidelines, Sec. 9.1
Committee chairmen, disciplinary actions against, Sec. Sec. 12.2-12.4
Conflicts of interest, Sec. 8.4
Corrupt practices laws, violations of, Sec. 7.3
Criminal conduct, Sec. 3.1
Debate on exclusion proceedings, Sec. 14
Debate on expulsion of Member, Sec. 13
Debate on resolution of censure, Sec. 16
Dodd, Thomas J., censure of, Sec. 16.3
Dowdy, John, abstention from House business by, Sec. 15.3
Ethics, code of, Sec. 1
Exclusion, Sec. 14
Expulsion of Member, authority of House, Sec. 13
Expulsion proceedings, initiation of, Sec. 13
Fees, improper, receipt of, Sec. 8.1
Felony conviction, exclusion of Member after, Sec. 14.2
Financial records, negligence in preparing, Sec. 7.1
Fine of Member-elect for acts committed in prior Congress, Sec. 17.1
Hinshaw, Andrew J., expulsion proceedings relating to, Sec. 13.1
Hoffman, Clare E., committee chairman, restrictions on, Sec. 12.4
Immigration bills, abuses in introduction of, Sec. 8.2
Imprisonment of Member, authority of House to direct, Sec. 12
Investments, disclosure of, Sec. 8.4
Long, Edward V., improper fees by, receipt of, Sec. 8.1
McCarthy, Joseph R., censure of, Sec. 16.2
Powell, Adam Clayton
censure of, Sec. 16.1
chairman of committee, actions affecting powers as, Sec. Sec. 12.2,
12.3
exclusion from House, Sec. 14.1
fine, imposition of, Sec. 17.1
penalties, multiple, Sec. 12.1
seniority status, deprivation of, Sec. 18.2
travel funds, misuse of, Sec. Sec. 9.2, 9.3
Privilege from arrest, Sec. 3.1
Relatives, employment of, Sec. 9
Resignation of Member pending expulsion proceedings, Sec. 13
Resolution initiating expulsion proceedings, Sec. 13
Seniority status, deprivation of, for acts committed in prior Congress,
Sec. 18.2
Seniority status of committee member, reduction of, Sec. 18.1
Shoemaker, Francis H., felony conviction as affecting right to take
oath, Sec. 14.2
Suspension of privileges, Sec. Sec. 15.1, 15.2
Travel funds, misuse of, Sec. Sec. 9.2, 9.3
Vote required to exclude Member, Sec. 14
Vote required to expel Member, Sec. 13
Williams, John Bell, seniority of, procedure in reducing, Sec. 18.1
Withdrawal from participating in voting and from committee business,
Sec. 15.3
[[Page 1699]]
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 1. In General; Codes of Conduct
Prior to the 90th Congress,(1) there was no rule setting
forth a formal code of conduct for Congressmen. However, in 1967 and
1968 the rules of the House were amended to (1) make the Committee on
Standards of Official Conduct a standing committee of the House; (2)
establish, as a new Rule XLIII, a Code of Official Conduct for Members,
officers, and employees of the House; (3) require Members, officers,
and certain key aides to disclose financial interests pursuant to
procedures outlined in new Rule XLIV.(2)
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1. Pre-1936 precedents on the punishment and expulsion of Members may
be found at 2 Hinds' Precedents Sec. Sec. 1236-1289 and 6
Cannon's Precedents Sec. Sec. 236-239.
This chapter includes precedents through the 94th Congress,
2d Session.
2. 114 Cong. Rec. 8802, 90th Cong. 2d Sess., Apr. 1, 1968 [H. Res.
1099, amending H. Res. 418]; Rule XLIII, Rule XLIV, House Rules
and Manual Sec. Sec. 939, 940 (1973).
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The Code of Official Conduct requires that each Member, officer, or
employee conduct himself so as to reflect creditably on the House and
to adhere to the spirit and letter of the rules of the House and the
rules of its committees. The code also contains provisions governing
the receipt of compensation, gifts, and honorariums, as well as the use
of campaign funds.(3)
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3. As used in the Code of Official Conduct, the term ``Member''
includes the Resident Commissioner from Puerto Rico and each
Delegate to the House; and the term ``officer or employee of
the House of Representatives'' means any individual whose
compensation is disbursed by the Clerk of the House of
Representatives. Rule XLIII, House Rules and Manual Sec. 939
(1973).
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The 85th Congress adopted by concurrent resolution a Code of Ethics
to be adhered to by all government employees, including
officeholders.(4)
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4. 72 Stat. Pt. 2, B12, July 11, 1958. This Code of Ethics is a
guideline for those in government.
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Code of Ethics for Government Service
Any person in Government service should:
[[Page 1700]]
1. Put loyalty to the highest moral principles and to country
above loyalty to persons, party, or Government department.
2. Uphold the Constitution, laws, and legal regulations of the
United States and of all governments therein and never be a party
to their evasion.
3. Give a full day's labor for a full day's pay; giving to the
performance of his duties his earnest effort and best thought.
4. Seek to find and employ more efficient and economical ways
of getting tasks accomplished.
5. Never discriminate unfairly by the dispensing of special
favors or privileges to anyone, whether for remuneration, or not;
and never accept, for himself or his family, favors or benefits
under circumstances which might be construed by reasonable persons
as influencing the performance of his governmental duties.
6. Make no private promises of any kind binding on the duties
of office, since a Government employee has no private word which
can be binding on public duty.
7. Engage in no business with the Government, either directly
or indirectly, which is inconsistent with the conscientious
performance of his governmental duties.
8. Never use any information coming to him confidentially in
the performance of governmental duties as a means for making
private profit.
9. Expose corruption wherever discovered.
10. Uphold these principles, ever conscious that a public
office is a public trust.
In House Report No. 94-1364, 94th Congress second session, House
Committee on Standards of Official Conduct, ``In the matter of a
Complaint against Representative Robert L. F. Sikes,'' July 23, 1976,
the committee indicated that the Code of Ethics was an expression of
traditional standards of conduct which continued to be applicable even
though the code was enacted in the form of a concurrent resolution in
1958 (pp. 7-8):
The Committee believes that these standards of conduct
traditionally applicable to Members of the House are perhaps best
expressed in the Code of Ethics for Government Service embodied in
House Concurrent Resolution 175, which was approved on July 11,
1958. Although the Code was adopted as a concurrent resolution,
and, as such, may have no legally binding effect, the Committee
believes the Code of Ethics for Government Service nonetheless
remains an expression of the traditional standards of conduct
applicable to Members of the House prior both to its adoption and
the adoption of the Code of Official Conduct in 1968. As is
explained in House Report No. 1208, 85th Congress, 1st Session,
August 21, 1957:
House Concurrent Resolution 175 is essentially a
declaration of fundamental principles of conduct that should be
observed by all persons in the public service. It spells out in
clear and straight forward language long-recognized concepts of
the high obligations and responsibilities, as well as the
rights and privileges, attendant upon services for our
Government. It reaffirms the traditional standard--that those
holding public
[[Page 1701]]
office are not owners of authority but agents of public
purpose--concerning which there can be no disagreement and to
which all Federal employees unquestionably should adhere. It is
not a mandate. It creates no new crime or penalty. Nor does it
impose any positive legal requirement for specific acts or
omissions. (Emphasis added.)
Thus, even assuming that House Concurrent Resolution 175 may
have ``died'' with the adjournment of the particular Congress in
which it was adopted, as one commentator seems to suggest, the
traditional standards of ethical conduct which were expressed
therein did not.
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 2. Committee Functions
Prior to the 90th Congress, there was no standing or permanent
committee in the House to investigate and report on improper conduct of
Members, officers, and employees. Prior to that time, select temporary
committees were ordinarily created to consider allegations of improper
conduct against Members, although in some instances such questions were
considered by standing committees.(5)
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5. For example, House Committee on Military Affairs, 2 Hinds'
Precedents Sec. 1274, 41st Cong. (1870); House Committee on the
Judiciary, 3 Hinds' Precedents Sec. 2652, 37th Cong. I (1861);
House Committee on Elections, 3 Hinds' Precedents Sec. 2653,
39th Cong. (1865); Committee on House Administration (misuse of
contingency funds), 112 Cong. Rec. 27711, 89th Cong. 2d Sess.,
Oct. 19, 1966 [H. Res. 1047], and (congressional conflict of
interest), 109 Cong. Rec. 4940, 88th Cong. 1st Sess., Mar. 28,
1963.
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The rules of the House were amended in the 90th Congress to make
the Committee on Standards of Official Conduct a standing committee of
the House.(6) In that Congress, the House adopted a
resolution (7) which provided that measures relating to the
Code of Official Conduct or to financial disclosure be referred to the
committee. It also authorized the committee to recommend to the House
appropriate legislative and administrative actions to establish or
enforce standards of official conduct for Members, officers, and
employees; to investigate alleged violations of the Code of Official
Conduct, or of any applicable law, rule, regulation, or
[[Page 1702]]
other standard of conduct, and, after a notice and hearing, recommend
to the House, by resolution or otherwise, appropriate action; to report
to the appropriate federal or state authorities, with approval of the
House, any substantial evidence of a violation of any applicable law
disclosed in a committee investigation. The committee was also
authorized to give advisory opinions respecting current or proposed
conduct. Thus, in the 91st Congress, second session [116 Cong. Rec.
1077, Jan. 26, 1970] the Committee on Standards of Official Conduct
published Advisory Opinion No. 1, on the role of a Member of the House
of Representatives in communicating with executives and independent
federal agencies either directly or through the Member's authorized
employee. See Sec. 10, infra.
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6. The House Committee on Standards of Official Conduct was created in
the 90th Congress, 113 Cong. Rec. 9448, 90th Cong. 1st Sess.,
Apr. 13, 1967 [H. Res. 418]; jurisdiction redefined, 114 Cong.
Rec. 8802, 90th Cong. 2d Sess., Apr. 3, 1968 [H. Res. 1099,
amending H. Res. 418]. Rule X clause 1(s) and Rule XI clause
19, House Rules and Manual (1973).
7. 114 Cong. Rec. 8777 et seq., 90th Cong. 2d Sess., Apr. 3, 1968 [H.
Res. 1099, amending H. Res. 418].
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Resolutions recommending action by the House as a result of an
investigation by the committee relating to the official conduct of a
Member, officer, or employee, were made privileged. For a discussion of
sanctions which may be invoked against a Member, see Sec. Sec. 12-18,
infra.
In 1970, Rule XI was amended to confer upon the Committee on
Standards of Official Conduct jurisdiction over measures relating to
(1) lobbying activities affecting the House, and (2) raising,
reporting, and use of campaign contributions for candidates for the
House; and the committee was given authority to investigate those
matters and report its findings to the House.(8)
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8. 116 Cong. Rec. 23136-41, 91st Cong. 2d Sess., July 8, 1970 [H. Res.
1031].
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The Committee on Standards of Official Conduct is authorized, under
Rule XI clause 19, to issue and publish advisory opinions with respect
to the general propriety of any current or proposed conduct of a
Member, officer, or employee of the House, upon request of any such
person.(9)
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9. See, for example, the advisory opinion in Sec. 10, infra.
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The Senate, in 1964, created a permanent committee designated as
the Select Committee on Standards and Conduct to receive complaints and
investigate allegations of improper conduct which may reflect upon the
Senate, violations of law, and violations of rules and regulations of
the Senate.(10) In 1968 the Senate amended its rules to
preclude certain business activities of its officers and employees, to
regulate certain aspects of campaign financing, and to require the
disclosure of Senators' financial interests.(11)
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10. 110 Cong. Rec. 16938, 88th Cong. 2d Sess., July 24, 1964 [S. Res.
338, amended].
11. 114 Cong. Rec. 7406, 90th Cong. 2d Sess., Mar. 22, 1968 [S. Res.
266, to provide standards of conduct for Members, officers, and
employees of the Senate].
Parliamentarian's Note: In 1967 (90th Cong. 1st Sess.) the
Senate select committee investigated allegations of misuse for
personal purposes of campaign and testimonial funds by Senator
Thomas J. Dodd (Conn.). It reported a resolution of censure
against the Senator which was adopted. See Sec. 16.3, infra.
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[[Page 1703]]
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 3. Violations of Statutes
The Constitution provides that a Member is to be privileged from
arrest during sessions except for ``Treason, Felony, and Breach of the
Peace.'' (12) However, with respect to the application of
criminal statutes, the Members of Congress, unless immunized by the
Speech or Debate Clause of the Constitution,(13) are subject
to the same penalties under the criminal laws as are all
citizens.(14) Indeed, the Members are specifically or
impliedly referred to in a number of penal statutes, the enforcement of
which rests in the executive and judicial branches. The statutes below
are cited by way of example:
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12. U.S. Const. art. I, Sec. 6. Generally see Ch. 7, supra.
13. U.S. Const. art. I, Sec. 6, clause 1. See U.S. v Brewster, 408 U.S.
501 (1972); Gravel v U.S., 408 U.S. 606 (1972); Powell v
McCormack, 395 U.S. 486 (1969); U.S. v Johnson, 383 U.S. 169
(1966); Doe v McMillan, 412 U.S. 306 (1973). See Ch. 7, supra,
for immunities generally.
14. See U.S. v Johnson, 337 F2d 180 (C.A. Md., 1964), affirmed 383 U.S.
169, certiorari denied, 385 U.S. 846.
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2 USC Sec. 441--Failure to file federal campaign financing
reports.
18 USC Sec. 201(c)--Soliciting or receiving a bribe.
18 USC Sec. 201(g)--Soliciting or receiving anything of value
for or because of any official act performed or to be performed.
18 USC Sec. 203(a)--Soliciting or receiving any outside
compensation for particular services.
18 USC Sec. 204--Practice in the Court of Claims.
18 USC Sec. 211--Acceptance or solicitation of anything of
value for promising to obtain appointive public office for any
person.
18 USC Sec. 287--False, fictitious, or fraudulent claims
against the United States.
18 USC Sec. 371--Conspiracy to commit an offense against the
United States.
18 USC Sec. Sec. 431, 433--Prohibits contracts with the
government by Members of Congress, with certain exceptions.
18 USC Sec. 599--Promise of appointment to office by a
candidate.
18 USC Sec. 600--Promise of employment or other benefit for
political activity.
18 USC Sec. 601--Deprivation of employment or other benefit for
political activity.
18 USC Sec. 602--Solicitation of political contributions from
U.S. officers or employees, or persons receiving salary
[[Page 1704]]
or compensation for services from money derived from the U.S.
Treasury.
18 USC Sec. 612--Publication or distribution of political
statements without names of persons and organizations responsible
for same.
18 USC Sec. 613--Solicitation of political contributions from
foreign nationals.
18 USC Sec. 1001--False or fraudulent statements or entries in
any matter within the jurisdiction of any department or agency of
the U.S.
31 USC Sec. 231--Liability of persons making false claims
against the government.
The statutes cited above are also expressly or by implication
applicable in many instances to the officers and employees of the
House. Again, the enforcement thereof is not left to internal means in
either House (although each House could impose internal sanctions), but
rests in the executive and judicial branches.
The House rules authorize the Committee on Standards of Official
Conduct to report to the appropriate federal or state authorities, with
approval of the House, any substantial evidence of a violation of an
applicable law by a Member, officer, or employee of the House, which
may have been disclosed in a committee investigation.(15)
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15. Rule XI clause 19(e), House Rules and Manual Sec. 720
(1973). -------------------
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Criminal Conduct; Privilege From Arrest
Sec. 3.1 The privilege of the Member from arrest does not apply to
situations where the Member himself is charged with a crime
referred to in the Constitution.
The United States Supreme Court,(16) in construing
article I, section 6, clause 1, ``they [the Senators and
Representatives] shall in all cases except treason, felony, and breach
of the peace, be privileged from arrest . . .'' has declared that the
terms of the provision exclude from the operation of the privilege all
criminal offenses. Thus, it may be concluded that the privilege only
applies in the case of civil arrest.(17)
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16. See Williamson v United States, 207 U.S. 425 (1908).
17. See Long v Ansell, 293 U.S. 76 (1934).
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See also the proceedings on Nov. 17, 1941,(18) wherein
Mr. Hatton W. Sumners, of Texas, in discussing a resolution granting
permission of the House to a Member to appear before a grand jury in
response to a summons, referred to the power of the House to refuse to
yield to a court summons ``except as the Constitution
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18. 87 Cong. Rec. 8956, 77th Cong. 1st Sess.
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[[Page 1705]]
provided with reference to crimes.''
Similarly, in earlier remarks, Mr. Sumners had stated:
It is important that the House of Representatives control the
matter of the attendance of Members of the House upon the business
of the House. It ought not to control, of course, when the Member
commits a crime, and it has no power to control.(l9)
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19. Id. at p. 8954.
See also H. Rept. No. 30, 45th Cong. 2d Sess., 1878 (House
Committee on the Judiciary), and 3 Hinds' Precedents Sec. 2673,
as to whether there had been any invasion of the rights and
privileges of the House in the alleged arrest and imprisonment
of Representative Robert Smalls (S.C.). The report concluded:
``Upon principle, therefore, as well as in view of the
precedents, your committee are clearly of the opinion that the
arrest of Mr. Smalls, upon the charge (of having accepted a
bribe while a state officer of South Carolina) and under the
circumstances hereinbefore set forth, was in no sense an
invasion of any of the rights or privileges of the House of
Representatives; and that, so far as any supposed breach of
privilege is concerned, his detention by the authorities of
South Carolina for an alleged violation of the criminal law of
that State was legal and justifiable; and having arrived at
that conclusion they have deemed it not only unnecessary but
improper for them to make any suggestion here as to what course
the House should have pursued had the arrest been a violation
of its privileges.''
See Ch. 7, supra, on arrest and immunity of Members.
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CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 4. Violations of House Rules
As shown in the summary below, many of the rules of the House
contain provisions under which a Member may be disciplined or penalized
for certain acts or conduct:
House Rules
Rule I clause 2--Speaker shall preserve order and decorum.
Rule VIII clause 1--Disqualification from voting on floor on
question where Member has a direct personal and pecuniary interest.
Rule XIV clause 1--Obtaining the floor, and method of address
(``confine himself to the question under debate, avoiding
personality'').
Rule XIV clause 4--Call to order of Member on his transgressing
the rules during sessions.
Rule XIV clause 5--Words taken down if Member is called to
order.
Rule XIV clause 7--Prohibition on exiting while Speaker is
putting the question; prohibition on passing between a Member who
has the floor, and the Chair, while the Member is speaking;
prohibition against wearing a hat or smoking while on the floor.
Rule XIV clause 8--Prohibition against introducing persons in
the galleries to the House or calling the attention of the House,
during a session, to people in the galleries.
Requiring a Member to withdraw where he has persisted despite
re
[[Page 1706]]
peated calls to order (Jefferson's Manual, see House Rules and
Manual Sec. 366 [1973]).
No criticism of the Senate (Jefferson's Manual, see House Rules
and Manual Sec. 372 [1973]), nor personal abuse, innuendo or
ridicule of the President (Jefferson's Manual, see House Rules and
Manual Sec. 370 [1973]).
Punishment by House of a Member for things of which the House
has cognizance (Jefferson's Manual, see House Rules and Manual
Sec. Sec. 303 et seq. [1973]).
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 5. Abuse of Mailing or Franking Privileges
The House Commission on Congressional Mailing Standards provides
guidance and assistance on the use of franking privileges by Members.
The commission is authorized to prescribe regulations governing the
proper use of the franking privilege.(1)
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1. 2 USC Sec. Sec. 501 et seq., Pub. L. No. 93-191, 87 Stat. 742
(1973), Pub. L. No. 93-255, 88 Stat. 52 (1974).
The Select Committee on Standards and Conduct of the Senate
performs the same function for the Senate (2 USC Sec. 502).
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Complaints respecting alleged misuse of the franking provisions in
title 39 of the United States Code (2) are considered by the
commission for the Members, and its decisions on facts are final. If
the commission finds that a serious and willful violation has occurred
or is about to occur, it refers the matter to the House Committee on
Standards of Official Conduct.(3)
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2. 39 USC Sec. Sec. 3210-3213(2), 3215, 3218, 3219.
3. 2 USC Sec. 501(e).
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CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 6. Absences From the House; Indebtedness
Congress has enacted statutes (a) directing the Sergeant at Arms of
the House to deduct from the monthly payment to a Member the amount of
his salary for each day that he has been absent from the House unless
such Member assigns as the reason for such absence the illness of
himself or of some member of his family; (4) (b) directing
the deduction from the salary of a Member for each day that he
withdraws without leave from his seat; (~5~) (c) directing
the deduction by the Sergeant at Arms from any salary or expense money
due a Member for his delinquent indebtedness to the
House.(6)
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4. 2 USC Sec. 39 (1856).
5. 2 USC Sec. 40 (1862).
6. 2 USC Sec. 40a (1934).
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If an employee of the House becomes indebted to the House or to the
trust fund account in the of
[[Page 1707]]
fice of the Sergeant at Arms, and fails to pay such indebtedness, the
chairman of the committee or the elected officer of the House having
jurisdiction of the activity under which indebtedness arose, is
authorized to certify to the Clerk the amount of the indebtedness, and
the Clerk is authorized to withhold the amount from any funds which are
disbursed by him to or on behalf of such employee.(7)
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7. 2 USC Sec. 89a (1958).
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CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 7. Misconduct in Elections or Campaigns
Elections and election contests are treated comprehensively
elsewhere in this work.(8) However, it should be pointed out
here that disputes involving alleged misconduct of a Member may be
initiated in the House by the defeated candidate pursuant to the
Federal Contested Elections Act.(9) Such contests may also
be instituted by means of (a) a protest or memorial filed in the House
by an elector of the district involved, (b) a protest or memorial filed
by any other person, or (c) a motion made by a Member of the
House.(10)
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8. See Chs. 8, 9, supra.
9. 2 USC Sec. Sec. 318 et seq., Pub. L. No. 91-138, 83 Stat. 284
(1969). See also Chs. 8, 9, supra.
10. H. Rept. No. 91-569, 91st Cong. 1st Sess., Oct. 14, 1969, ``Federal
Contested Elections Act,'' p. 2.
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Allegations in election contests pertaining to violations of
federal and state corrupt practices acts are considered by the
Committee on House Administration.(11)
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11. Rule XI, House Rules and Manual Sec. 693 (1973). Prior to the
adoption of the Legislative Reorganization Act of 1946, 60
Stat. 812, ch. 455, contests were considered by several House
elections committees.
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Prior to the Supreme Court decision in Powell v McCormack, 395 U.S.
486 (1969) in which the Court held that qualifications of a Member-
elect other than age, citizenship, and inhabitancy may not be judged by
the House in connection with the initial or final right to a seat of
such person, both Houses had adopted the premise that violation of a
Corrupt Practices Act, federal or state, constituted grounds for
exclusion of a Member-elect (see Frank L. Smith, of Illinois, ``Senate
Election, Expulsion and Censure Cases from 1793 to 1972,'' p. 133; Farr
v McLane, 6 Cannon's Precedents 75; Gill v Catlin, 6 Cannon's
Precedents Sec. 79). Although such violations are not grounds for
disqualification, evidence thereof may still be given to appropriate
prosecuting attorneys for use in an investigation of fraud, misconduct,
or irregularities affecting election results.
[[Page 1708]]
Negligence in Preparing Financial Records
Sec. 7.1 An elections committee ruled that mere negligence in preparing
expenditure accounts to be filed with the Clerk should not, absent
fraud, deprive one of his seat in the House when he has received a
substantial majority of votes.
In a report on an election contest in the 78th Congress, the
Committee on Elections No. 3 ruled that the negligence of the
contestee, Howard J. McMurray, and his counsel, in preparing
expenditure accounts to be filed with the Clerk should not, absent
fraud, deprive the contestee of his seat in the House when he has
received a substantial majority of votes.(12) The contestant
had charged that the contestee had received contributions and made
expenditures in violation of the Federal Corrupt Practices
Act.(l3)
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12. 90 Cong. Rec. 962, 78th Cong. 2d Sess., Jan. 31, 1944. H. Rept. No.
1032 [H. Res. 426] (contested election case of Lewis D. Thill
against Howard J. McMurray, Fifth Congressional District of
Wisconsin).
13. H. Rept. No. 1032.
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The statement filed by the contestee with the Clerk had been
prepared by an attorney and the figures contained therein reflected
contributions and expenditures by two independent campaign committees
for the contestee. The committees were not required to file the
accounts under the federal act, and the funds handled by them
unbeknownst to the contestee were not subject to expenditure
limitations in the federal act. The contestee actually should have
filed a federal statement showing no receipts or
disbursements.(14)
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14. Id.
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The report stated, ``There is no evidence to show that any effort
was made to conceal any receipts or expenditures'' made on behalf of
the candidacy of Mr. McMurray. ``Under these circumstances,'' the
report continued, ``. . . contestee should not be denied his seat in
the House of Representatives on account of this error made in the
statement filed by [contestee] with the Clerk of the House of
Representatives.'' The committee, ``. . . did not find any evidence of
fraud.'' (15)
---------------------------------------------------------------------------
15. Id.
---------------------------------------------------------------------------
A resolution dismissing the contest was agreed to by the
House.(16)
---------------------------------------------------------------------------
16. 90 Cong. Rec. 933, 78th Cong. 2d Sess., Jan. 31, 1944 [H. Res.
426].
---------------------------------------------------------------------------
Unauthorized Distribution of Campaign Literature
Sec. 7.2 A pre-election irregularity such as unauthorized
[[Page 1709]]
distribution of campaign literature will not be attributed to a
particular candidate where he did not participate therein.
In House Report No. 1172, on the right of Dale Alford, of Arkansas,
to a seat in the 86th Congress, the Committee on House Administration
determined that a pre-election irregularity such as unauthorized
distribution of campaign literature should not be attributed to a
particular candidate Where he did not participate therein. The
committee report stated: (17)
---------------------------------------------------------------------------
17. H. Rept. No. 1172, p. 19, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Unsigned Circular
The subcommittee conducted an intensive investigation of the
unsigned pre-election circular used in the campaign. This circular
was used in violation of both Arkansas and Federal law. The person
responsible for this circular admitted that he used it without the
knowledge of either the write-in candidate or his campaign manager.
This person was interrogated by the Federal grand jury then sitting
at Little Rock and no indictment was brought in.
The distribution of unsigned campaign material is strongly
condemned, but there is no evidence showing that the write-in
candidate was even aware of the existence of such material. This is
one of the several instances wherein the write-in candidate is
sought to be held responsible for an irregularity which occurred,
but over which he had no control and in which he did not
participate. The investigation revealed many irregularities which
could erroneously be attributed to either candidate, but the mere
existence of an irregularity in any campaign should not be
attributed to a particular candidate where he did not participate
therein. The subcommittee felt this to be a sound and equitable
rule, and it was followed throughout the investigation with respect
to both candidates.
A resolution holding that Mr. Alford was duly elected was agreed to
by the House on Sept. 8, 1959.(18)
---------------------------------------------------------------------------
18. 105 Cong. Rec. 18610, 86th Cong. 1st Sess. [H. Res. 380].
---------------------------------------------------------------------------
Violation of Corrupt Practices Act
Sec. 7.3 An elections committee ruled that contestant had not
established by a fair preponderance of the evidence that contestee
had violated the California Corrupt Practices Act or the Federal
Corrupt Practices Act.
In a report in the 76th Congress, the Committee on Elections No. 2,
with reference to a contest for a seat from California,(19)
stat
[[Page 1710]]
ed that the pleadings presented several main issues, namely:
---------------------------------------------------------------------------
19. H. Rept. No. 1783, 76th Cong. 3d Sess., Mar. 14, 1940, on the
contested election case of Byron N. Scott, contestant, versus
Thomas M. Eaton, contestee, from the 18th District of
California.
---------------------------------------------------------------------------
Did the Contestee [Thomas M. Eaton] violate the Corrupt
Practices Act of the State of California?
Did the Contestee violate the Federal Corrupt Practices Act?
Did the violation of either or both acts directly or indirectly
deprive the contestant from receiving a majority of the votes cast
at [the] election? (20)
---------------------------------------------------------------------------
20. H. Rept. No. 1783.
---------------------------------------------------------------------------
The committee summarily ruled that the contestant had failed to
meet the burden of proof and to establish by a fair preponderance of
the evidence the issues raised.(1)
---------------------------------------------------------------------------
1. Id.
---------------------------------------------------------------------------
A resolution declaring that the contestee was elected was reported
to the House but was not acted upon.(2) Mr. Eaton had been
sworn in at the convening of the Congress.(3)
---------------------------------------------------------------------------
2. 86 Cong. Rec. 2885, 76th Cong. 3d Sess., Mar. 14, 1940.
3. 84 Cong. Rec. 12, 76th Cong. 1st Sess., Jan. 3, 1939.
---------------------------------------------------------------------------
Sec. 7.4 An elections committee admonished a contestee who signed under
oath an expenditure statement to be filed with the Clerk when the
contestee did not know its contents or the irregularities therein.
In the 78th Congress, the Committee on Elections No. 3 in a report
admonished a contestee who signed under oath an expenditure statement
to be filed with the Clerk of the House when he was not familiar with
its contents or the irregularities therein.(4) Said the
committee:
---------------------------------------------------------------------------
4. 90 Cong. Rec. 962, 78th Cong. 2d Sess., Jan. 31, 1944. H. Rept. No.
1032 [H. Res. 426]; (contested election case of Lewis D. Thill
against Howard J. McMurray, Fifth Congressional District of
Wisconsin). See also Sec. 7.1, supra.
---------------------------------------------------------------------------
Neither does it (Committee on Elections No. 3) attempt to
condone the action of the contestee, Mr. McMurray, in signing under
oath the statement filed with the Clerk of the House of
Representatives, without being familiar with the contents of the
statement or the irregularities which it contained.(5)
---------------------------------------------------------------------------
5. H. Rept. No. 1032.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 8. Financial Matters; Disclosure Requirements
The House rules (Rule XLIV) require the disclosure, each year, of
certain financial interests by Members, officers, and principal
assistants. They must file a report disclosing the identity of certain
business entities in which they have an interest, as well as certain
professional organizations from which they derive an
income.(6)
---------------------------------------------------------------------------
6. Rule XLIV, House Rules and Manual Sec. 940 (1973)
---------------------------------------------------------------------------
[[Page 1711]]
Rule XLIV of the rules of the House was amended to require
disclosure of: (1) honorariums received from a single source totaling
$300 or more, and (2) each creditor to whom was owed any unsecured loan
or other indebtedness of $10,000 or more which was outstanding for a,
least 90 days in the preceding calendar year.(7)
---------------------------------------------------------------------------
7. 116 Cong. Rec. 17012, 91st Cong. 2d Sess., May 26, 1970 [H. Res.
796].
A resolution reported by the Committee on Standards of
Official Conduct, amending Rule XLIV to revise the financial
disclosure requirements of that rule, is not a privileged
resolution under Rule XI clause 22. 116 Cong. Rec. 17012, 91st
Cong. 2d Sess., May 26, 1970 [H. Res. 971, providing for
consideration of H. Res. 796].
The loans disclosure provision was included following
allegations in 1969 that a member of the House Committee on
Banking and Currency had owed banks more than $75,000. See H.
Rept. No. 91-938, 91st Cong. 2d Sess., and ``Congress and the
Nation'' vol. III, 1969-1972, p. 426, Congressional Quarterly,
Inc.
---------------------------------------------------------------------------
The financial statements required by Rule XLIV must be
filedannually by Apr. 30.(8)
---------------------------------------------------------------------------
8. Rule XLIV, House Rules and Manual Sec. 940
(1973). -------------------
---------------------------------------------------------------------------
Improper Fee
Sec. 8.1 Charges that a Senator had used his position as a subcommittee
chairman to attempt to aid a labor leader in avoiding a prison
sentence and had received fees for his efforts were investigated in
the 90th Congress by a Senate select committee; the committee
determined that the payments that had been made were not related to
the labor leader or his union.
In the 90th Congress, the Senate Select Committee on Standards and
Conduct investigated charges that a Senator--Edward V. Long, of
Missouri--had used his position as a subcommittee chairman to attempt
to aid a labor leader in staying out of prison and had accepted fees
for his efforts from one of the labor leader's lawyers.(~9~)
Statements appeared in several magazines and newspapers that the
payments made to the Senator by Morris Shenker, a practicing attorney
in St. Louis, Missouri, were made to influence the hearings on
invasions of privacy conducted by the Senate Judiciary Subcommittee on
Administrative Practice and Procedure, of which the Senator was
Chairman, for the purpose of assisting James Hoffa of the International
Teamsters Union.(10)
---------------------------------------------------------------------------
9. 113 Cong. Rec. 30096-98, 90th Cong. 1st Sess., Oct. 25, 1967.
10. Id. at p. 30096.
---------------------------------------------------------------------------
[[Page 1712]]
The select committee conducted an investigation and concluded that
the payments made to the Senator by Mr. Shenker between 1961 and 1967
were for professional legal services, and that they had no relationship
to Mr. Hoffa or to the Teamsters Union. The committee also concluded
that the payments had no connection with the Senator's ``duties or
activities as Chairman of the Subcommittee on Administrative Practice
and Procedure, the Subcommittee hearings or Senator Long's duties or
activities as a Member of the Senate.(11)
---------------------------------------------------------------------------
11. Id. at p. 30098.
---------------------------------------------------------------------------
Abuses in Introducing Immigration Bills
Sec. 8.2 Charges that bribes were paid to Senate employees for the
introduction of private immigration bills to help Chinese seamen
avoid deportation were investigated by a Senate select committee in
the 91st Congress; the committee found no evidence of misconduct by
any Senator or Senate employee.
In the 91st Congress,(12) the Chairman (13)
of the Senate Select Committee on Standards and Conduct discussed on
the Senate floor a report of the committee which had been submitted
that day dealing with an investigation of the introduction of private
immigration bills in the Senate for the relief of Chinese crewmen
during the 90th and 91st Congresses.(1~4) Statements had
been made in the media that some Senators or their aides received gifts
and campaign contributions for introducing bills to enable Chinese
ship-jumpers to escape deportation as the result of illegal stays in
this country.
---------------------------------------------------------------------------
12 116 Cong. Rec. 17361, 17362, 91st Cong. 2d Sess., May 28, 1970.
13. 13. John Stennis (Miss.).
14. 116 Cong. Rec 17360, 91st Cong. 2d Sess., S. Rept. No. 91-911.
---------------------------------------------------------------------------
The chairman stated that more than 600 such bills had been
introduced during the two Congresses, a great increase over the average
number that had been introduced in prior Congresses. He pointed out
that when the matter had first come to the committee's attention in
September 1969, he communicated with the majority and minority
leadership about strict enforcement of procedures for the introduction
of bills. ``. . . [T]he leadership responded immediately,'' he said,
``by invoking the practice that for future bills to be introduced, they
had to have the actual signature and the presence of a sponsoring
Senator.'' (l5)
---------------------------------------------------------------------------
15. Id. at p. 17362.
---------------------------------------------------------------------------
[[Page 1713]]
The committee and its staff investigated the more than 600 bills to
ascertain if any abuses had taken place. The chairman concluded: ``. .
. I can safely summarize . . . by saying that we found no evidence of
any misconduct by any Senator or any Senate employee, nor did we
believe from the information we obtained that there was any reason for
further proceedings.'' (16)
---------------------------------------------------------------------------
16. Id.
---------------------------------------------------------------------------
Auto-leasing Agreements
Sec. 8.3 A Senate select committee determined that it was improper for
a company to make an agreement with a Senate committee for the
leasing of cars for the private use of Senators.
On Aug. 24, 1970, the Chairman (17) of the Senate Select
Committee on Standards and Conduct reported to the Senate the results
of the committee's investigation and recommendations respecting the
leasing by certain Senators of automobiles from an automobile
manufacturing company under specially favorable terms. The chairman
declared that one company had made an agreement directly with a Senate
committee for the leasing of cars for the private use of Senators. A
Senator receiving a car paid the amount of the lease at a price less
than that offered the general public. Appropriated funds were not
used.(18) The chairman said that the leasing arrangements
were made for promotional purposes by the company, without intent to
exercise improper influence. He added that the committee had concluded
that the leasing arrangements with Senators violated no law nor any
Senate rule,(19~) but declared:
---------------------------------------------------------------------------
17. John Stennis (Miss.).
18. 116 Cong. Rec. 29880, 91st Cong. 2d Sess.
19. Id.
---------------------------------------------------------------------------
. . . [T]he practice of the one company of making an agreement
directly with a Senate committee for the leasing of cars for the
private use of Senators clearly is improper. A Senate committee by
itself does not have the authority to make such a contract, which
in our opinion is void and unenforcible. Although these lease
agreements do not bind the Senate or any of its committees, we
believe this practice by the committees should be terminated at
once.
After carefully considering the benefits and the implications
of the leasing of cars to Senators, our committee makes the
following advisory recommendation for the guidance of the various
Senators involved: Existing private leases of automobiles to
Senators at favorable rates should be terminated at or before the
end of the current model year. These leases should not be renewed.
In making pri
[[Page 1714]]
vate agreements in the future for the leasing of automobiles,
Senators should not accept any favorable terms and conditions that
are available to them only as Senators.(20)
---------------------------------------------------------------------------
20. Id.
---------------------------------------------------------------------------
Investments
Sec. 8.4 The House reprimanded a Member for certain conduct occurring
during prior Congresses involving conflicts of interest (in
violation of a generally accepted standard of ethical conduct
applicable to all government officials but not enacted into
permanent law at the time of the violation), as well as failure to
make proper financial disclosures in accordance with a House rule
then in effect, but declined to punish the Member for other prior
conduct under the circumstances of the case.
On July 29, 1976,(21) the House agreed to a resolution
adopting the report (H. Rept. No. 94-1364) of the Committee on
Standards of Official Conduct which reprimanded a Member (1) for
failing to disclose, in violation of Rule XLIV (requiring financial
disclosure of Members) his ownership of certain stock; and (2) for his
investment in a Navy bank while actively promoting its establishment,
in violation of the Code of Ethics for Government Service. The report
also declined to punish the Member for his sponsorship of legislation
in 1961 in which he had a direct financial interest, since an extended
period of time had elapsed, and the Member had been continually re-
elected by constituents with apparent knowledge of the circumstances.
---------------------------------------------------------------------------
21. See the proceedings relating to H. Res. 1421, 94th Cong. 2d Sess.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 9. Abuses in Hiring, Employment, and Travel
The Code of Official Conduct provides that a Member may not retain
anyone on his clerk-hire allowance who does not perform duties
commensurate with the compensation he receives.(1)
---------------------------------------------------------------------------
1. Rule XLIII clause 8, House Rules and Manual Sec. 939 (1973).
---------------------------------------------------------------------------
By statute, employees of the House may not divide any portion of
their salaries or compensation with another,(2) nor may they
sublet part of their duties to another.(3) Violation of
these provisions is deemed cause for removal from office.(4)
---------------------------------------------------------------------------
2. 2 USC Sec. 86.
3. 2 USC Sec. 87.
4. 2 USC Sec. 90.
No employee of either House of Congress shall sublet to or
hire another to do or perform any part of the duties or work
attached to the position to which he was appointed. 2 USC
Sec. 101.
---------------------------------------------------------------------------
[[Page 1715]]
Professional staff members of standing committees may not engage in
any work other than committee business, and may not be assigned duties
other than those pertaining to committee business.(5)
---------------------------------------------------------------------------
5. Rule XI clause 29 (a)(3)(B), House Rules and Manual Sec. 737(a)
(1973).
---------------------------------------------------------------------------
A statute prohibits the employment, appointment, or advancement by
a public official of a relative to a civilian position in the agency in
which the official is serving or over which he exercises jurisdiction
or control.(6) This statute, sometimes called the
antinepotism law, became effective on Dec. 16, 1967; it has no
retroactive effect and is inapplicable to those appointed prior
thereto.(7)
---------------------------------------------------------------------------
6. 5 USC Sec. 3110, Pub. L. No. 90-206, 81 Stat. 640 (1967).
``Public official'' includes a Member of Congress.
``Relative'' means an individual who is related to the public
official as father, mother, son, daughter, brother, sister,
uncle, aunt, first cousin, nephew, niece, husband, wife,
father-in-law, mother-in-law, son-in-law, daughter-in-law,
brother-in-law, sister-in-law, stepfather, stepmother, stepson,
stepdaughter, stepbrother, stepsister, half brother or half
sister. 5 USC Sec. 3110(a).
7. Pub. L. No. 90-206 Sec. 221(c), 81 Stat. 640
(1967). -------------------
---------------------------------------------------------------------------
Campaign Activities and Clerk-hire Guidelines
Sec. 9.1 Guidelines have been issued relative to the use of clerical
personnel in the campaign activities of Members.
In 1973, the Committee on Standards of Official Conduct promulgated
an advisory opinion establishing clerk-hire guidelines. It stated in
part: (8)
---------------------------------------------------------------------------
8. 119 Cong. Rec. 23691, 23692, 93d Cong. 1st Sess., July 12, 1973.
---------------------------------------------------------------------------
This Committee is of the opinion that the funds appropriated
for Members' clerk-hire should result only in payment for personal
services of individuals, in accordance with the law relating to the
employment of relatives, employed on a regular basis, in places as
provided by law, for the purpose of performing the duties a Member
requires in carrying out his representational functions.
The Committee emphasizes that this opinion in no way seeks to
encourage the establishment of uniform job descriptions or
imposition of any rigid work standards on a Member's clerical
staff. It does suggest, however, that it is improper to levy, as a
condition of employment, any responsibility on any clerk to incur
personal expenditures for the primary benefit of the Member or of
the Member's congressional office operations. . . .
The opinion clearly would prohibit any Member from retaining
any person from his clerk-hire allowance under ei
[[Page 1716]]
ther an express or tacit agreement that the salary to be paid him
is in lieu of any present or future indebtedness of the Member, any
portion of which may be allocable to . . . campaign obligations, or
any other nonrepresentational service.
In a related regard, the Committee feels a statement it made
earlier, in responding to a complaint, may be of interest. It
states: ``As to the allegation regarding campaign activity by an
individual on the clerk-hire rolls of the House, it should be noted
that, due to the irregular time frame in which the Congress
operates, it is unrealistic to impose conventional work hours and
rules on congressional employees. At some times, these employees
may work more than double the usual work week--at others, some
less. Thus employees are expected to fulfill the clerical work the
Member requires during the hours he requires and generally are free
at other periods. If, during the periods he is free, he voluntarily
engages in campaign activity, there is no bar to this. There will,
of course, be differing views as to whether the spirit of this
principle is violated, but this Committee expects Members of the
House to abide by the general proposition.''
Misusing Travel Funds
Sec. 9.2 A party caucus removed a Member from his office as chairman of
a committee based on a report disclosing certain improprieties
concerning his travel expenses as well as an abuse of clerk-hiring
practices.
In 1967, a party caucus removed a Member (9) from his
position as Chairman of the Committee on Education and Labor after a
subcommittee of the Committee on House Administration had reported
improprieties in certain of his travel expenses during the 89th
Congress, and in the clerk-hire status of his wife.(10)
Subsequent to the report of the subcommittee and prior to the
organization of the 90th Congress, the Democratic Party Members-elect,
meeting in caucus, voted to remove him from his office as Chairman of
the House Committee on Education and Labor.(11)
---------------------------------------------------------------------------
9. Adam Clayton Powell (N.Y.).
10. H. Rept. No. 2349, 89th Cong. 2d Sess.
11. H. Rept. No. 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Sec. 9.3 In an attempt to curb the misuse of travel funds, the
cancellation of all airline credit cards which had been issued to a
committee was ordered by the Committee on House Administration.
In September 1966, as the result of protests made by certain
Members on the Committee on Education and Labor, the Committee on House
Administration, acting through its Chairman, directed the cancellation
of all air
[[Page 1717]]
line credit cards which had been issued to the Committee on Education
and Labor and notified its Chairman (12) that all future
travel must be specifically approved by the Committee on House
Administration prior to undertaking the travel.(13)
---------------------------------------------------------------------------
12. Adam Clayton Powell (N.Y.).
13. H. Rept. No. 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
The reason for the action was set forth in a report prepared by a
select committee in the 90th Congress: (14)
---------------------------------------------------------------------------
14. Id. at p. 1.
---------------------------------------------------------------------------
During the 89th Congress open and widespread criticism
developed with respect to the conduct of Representative Adam
Clayton Powell, of New York. This criticism emanated both from
within the House of Representatives and the public, and related
primarily to Representative Powell's alleged contumacious conduct
toward the courts of the State of New York and his alleged official
misconduct in the management of his congressional office and his
office as chairman of the Committee on Education and Labor. There
were charges Representative Powell was misusing travel funds and
was continuing to employ his wife on his clerk-hire payroll while
she was living in San Juan, P.R., in violation of Public Law 89-90,
and apparently performing few if any official duties.
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 10. Communications With Federal Agencies
Guidelines relative to communications that may properly be made by
a Member to a federal agency on behalf of a constituent have been
issued by the Committee on Standards of Official Conduct:
(15)
---------------------------------------------------------------------------
15. The Chairman (Melvin Price [Ill.]) of the Committee on Standards of
Official Conduct inserted in the Congressional Record an
advisory opinion, promulgated by that committee pursuant to
Rule XI clause 19(e)(4), establishing guidelines for Members
and employees in communicating with departments and agencies of
the executive branch on constituent matters. 116 Cong. Rec.
1077, 1078, 91st Cong. 2d Sess., Jan. 26, 1970 [H. Res. 796].
---------------------------------------------------------------------------
Representations
This Committee is of the opinion that a Member of the House of
Representatives, either on his own initiative or at the request of
a petitioner, may properly communicate with an Executive or
Independent Agency on any matter to:
Request information or a status report;
Urge prompt consideration;
Arrange for interviews or appointments;
Express judgment;
Call for reconsideration of an administrative response which he
believes is not supported by established law, Federal Regulation or
legislative intent;
Perform any other service of a similar nature in this area
compatible with the criteria hereinafter expressed in this Advisory
Opinion.
Principles To Be Observed
The overall public interest, naturally, is primary to any
individual mat
[[Page 1718]]
ter and should be so considered. There are also other self-evident
standards of official conduct which Members should uphold with
regard to these communications. The Committee believes the
following to be basic:
1. A Member's responsibility in this area is to all his
constituents equally and should be pursued with diligence
irrespective of political or other considerations.
2. Direct or implied suggestion of either favoritism or
reprisal in advance of, or subsequent to, action taken by the
agency contacted is unwarranted abuse of the representative role.
3. A Member should make every effort to assure that
representations made in his name by any staff employee conform to
his instruction.
Clear Limitations
Attention is invited to United States Code, Title 18, Sec.
203(a) which states in part: ``Whoever . . . directly or indirectly
receives or agrees to receive, or asks, demands, solicits, or
seeks, any compensation for any services rendered or to be rendered
either by himself or another--
(1) at a time when he is a Member of Congress . . . or
(2) at a time when he is an officer or employee of the United
States in the . . . legislative . . . branch of the government . .
. in relation to any proceedings, application, request for a ruling
or other determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter in which the United
States is a party or has a direct and substantial interest, before
any department, agency, court-martial, officer, or any civil,
military, or naval commission . . .
Shall be fined not more than $10,000 or imprisoned for not more
than two years, or both; and shall be incapable of holding any
office of honor, trust, or profit under the United States.''
The Committee emphasizes that it is not herein interpreting
this statute but notes that the law does refer to any compensation,
directly, or indirectly, for services by himself or another. In
this connection, the Committee suggests the need for caution to
prevent the accrual to a Member of any compensation for any such
services which may be performed by a law firm in which the Member
retains a residual interest.
It should be noted that the above statute applies to officers
and employees of the House of Representatives as well as to
Members.
In 1970, Martin Sweig, who had served as administrative assistant
to Speaker John W. McCormack, of Massachusetts, until October 1969, was
acquitted in federal district court in New York of conspiracy in
connection with certain activities conducted from the Speaker's office.
Mr. Sweig and Nathan Voloshen had allegedly been engaged in a practice
whereby Mr. Voloshen, in exchange for the receipt of fees from persons
with matters before government agencies, promised to exert the
influence of the Speaker's office in respect to such
agencies.(16)
---------------------------------------------------------------------------
16. U.S. v Sweig, 316 F Supp 1148 (D.C. S.N.Y. 1969).
---------------------------------------------------------------------------
[[Page 1719]]
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
Sec. 11. Acceptance of Foreign Gifts and Awards
The Constitution prohibits any person holding federal office from
accepting a gift from a foreign state without the consent of the
Congress.(17) However, Congress has provided by statute for
employees of the federal government to accept or retain such a gift if
of minimal value.(18) In addition, an employee may accept a
gift of more than minimal value when refusal would cause offense or
embarrassment to the foreign relations of the United States; in that
case, the gift is deemed to be property of the United States and not of
the donee.(19)
---------------------------------------------------------------------------
17. U.S. Const. art. I, Sec. 9, clause 8.
18. 5 USC Sec. 7342(c)(1). See also Sec. 515 of Pub. L. No. 95-105 for
revision of this statute. The Select Committee on Ethics [See
Cong. Rec. (daily ed.), 95th Cong. 1st Sess., May 18, 1977] and
the Committee on Standards of Official Conduct have promulgated
regulations and advisory opinions applicable to the acceptance
of foreign gifts and decorations.
19. 5 USC Sec. 7342(c)(2). ``Employee'' is defined for the purpose of
this section to include a Member of Congress and members of his
family and household [5 USC 7342(a)(1) (E) and (F)].
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 12. In General; Penalties
The authority of the House of Representatives over the internal
discipline of its Members flows from the Constitution, and the
enforcement of disciplinary proceedings by the House against a Member
is carried out under its rulemaking power.(20)
---------------------------------------------------------------------------
20. U.S. Const. art. I, Sec. 5, clause 1 states: ``Each House shall be
the Judge of the Elections, Returns, and Qualifications of its
own Members. . . .''
U.S. Const. art. I, Sec. 5, clause 2 provides: ``Each House
may determine the Rules of its Proceedings, punish its Members
for disorderly Behavior, and, with the Concurrence of two-
thirds, expel a Member.''
---------------------------------------------------------------------------
There are several different kinds of disciplinary measures that
have been invoked by the House against one of its Members. These
include (1) expulsion, (2) exclusion,(21) (3) censure, (4)
sus
[[Page 1720]]
pension of voting rights and other privileges, (5) imposition of a
fine, (6) deprivation of seniority status, and (7) requiring an
apology.(1)
---------------------------------------------------------------------------
21. Exclusion is apparently no longer a disciplinary procedure to be
invoked in cases involving the misconduct of Members but is
invoked only for failure to meet qualifications of Members as
defined by the Constitution. The United States Supreme Court in
1963, in Powell v McCormack, 395 U.S. 486, held that the power
of the House to judge the qualifications of its Members (art.
I, Sec. 5, clause 1) was limited to the constitutional
qualifications of age, citizenship, and inhabitancy (art. I,
Sec. 2, clause 2). For further discussion of exclusion, see
Sec. 14, infra.
1. See Sec. Sec. 13 et seq., infra.
---------------------------------------------------------------------------
Imprisonment is a form of punishment that is theoretically within
the power of the House to impose, but such action has never been taken
by the House against a Member.(2)
---------------------------------------------------------------------------
2. The U.S. Supreme Court has stated, ``[T]he Constitution expressly
empowers each House to punish its own Members for disorderly
behavior. We see no reason to doubt that this punishment may in
a proper case be imprisonment, and that it may be [for] refusal
to obey some rule on that subject made by the House for the
preservation of order.'' Kilbourn v Thompson, 103 U.S. 168,
189, 190 (1880).
---------------------------------------------------------------------------
Jurisdiction over alleged misconduct rests with the Committee on
Standards of Official Conduct. The committee is charged with the
responsibility of investigating alleged violations of the Code of
Official Conduct by a Member, officer, or employee of the House, or
violations by such person of any law, rule, regulation, or other
standard of conduct applicable in the performance of his duties or the
discharge of his responsibilities. The committee in such cases, after
notice and hearing, is directed to recommend to the House by resolution
or otherwise such action as the committee may deem appropriate in the
circumstances.(3)
---------------------------------------------------------------------------
3. Rule XI clause 19, House Rules and Manual Sec. 720 (1973).
The Senate created a Select Committee on Standards and
Conduct, 110 Cong. Rec. 16938, 88th Cong. 2d Sess., July 24,
1964 [S. Res. 338, amended], and adopted a Code of Conduct, 114
Cong. Rec. 7406, 90th Cong. 2d Sess., Mar. 22, 1968 [S. Res.
266], Rules XLI, XLII, XLIII, XLIV, Senate Manual. 93d Cong.
1st Sess. (1973).
---------------------------------------------------------------------------
Each elected officer of the House (who is not a Member) with
supervisory responsibilities is authorized to remove or otherwise
discipline any employee under his supervision.(4)Clerks to
Members are subject to removal at any time with or without
cause.(5)
---------------------------------------------------------------------------
4. 2 USC Sec. 60-1, 84 Stat. 1190, Pub. L. No. 91-510 (1970). See also
2 USC Sec. 85.
5. 2 USC Sec. 92. -------------------
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Multiple Penalties
Sec. 12.1 A House committee recommended a resolution pro
[[Page 1721]]
viding for the imposition of multiple forms of punishment on a
Member-elect, including censure, fine, and loss of seniority;
subsequently the House adopted a resolution providing for a fine
and loss of seniority.
At the commencement of the 91st Congress, the House agreed to a
resolution (1) authorizing the Speaker to administer the oath to
Representative-elect Adam Clayton Powell, of New York, but (2)
providing for a fine of $25,000 to be deducted on a monthly basis from
his salary, (3) reducing his seniority to that of a first-term
Congressman (thus eliminating consideration of any prior service in the
computation of seniority), and (4) specifying that Mr. Powell must take
the oath before Jan. 15, 1969, or his seat would be declared
vacant.(6)
---------------------------------------------------------------------------
6. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res.
2].
Similar recommendations plus a recommendation of censure
had been considered and rejected in the previous Congress. See
H. Res. 278, 90th Cong. 1st Sess., 113 Cong. Rec. 4997, Mar. 1,
1967, for the resolution embodying the recommendations of the
select committee pursuant to H. Res. 1. The motion for the
previous question on this resolution was defeated (113 Cong.
Rec. 5020), and a substitute amendment excluding the Member-
elect was proposed and adopted (113 Cong. Rec. 5037, 5038).
With respect to the committee's recommendation, the
committee Chairman, Emanuel Celler (N.Y.), stated: ``You will
note that we went beyond censure. Never before has a committee
devised such punishment short of exclusion which went beyond
censure.'' (113 Cong. Rec. 4998).
In opposing the multiple punishment, Representative John
Conyers, Jr. (Mich.) stated: ``A fine and a loss of seniority
is a completely unprecedented procedure for the House to use in
punishing a Member. There is simply no precedent whatsoever for
the House to punish its Members other than by censuring or
expelling.'' (113 Cong. Rec. 5007).
---------------------------------------------------------------------------
Disciplinary Actions Against Committee Chairmen
Sec. 12.2 The authority of the chairman of a committee of the House was
curtailed by the House through adoption of a resolution that
restricted the power of the chairman to provide for funds for
investigations by subcommittees of that committee.
In the 88th Congress, the Chairman (7) of the House
Committee on Education and Labor was disciplined by the House through
adoption of a resolution providing that funds for sub
---------------------------------------------------------------------------
7. Adam Clayton Powell (N.Y.).
---------------------------------------------------------------------------
[[Page 1722]]
committee investigations be made directly available to the
subcommittees.(8)
---------------------------------------------------------------------------
8. 109 Cong. Rec. 3525-31, 88th Cong. 1st Sess., Mar. 6, 1963, H.
Rept. No. 61 [H. Res. 254].
---------------------------------------------------------------------------
The chairman of the committee had requested authorization to
withdraw $697,000 from the contingent fund of the House for expenses of
committee investigations. However, the authorizing resolution, as
amended, provided only $200,000, of which $150,000 was made available
to each of the committee's six subcommittees (at $25,000
each).(9) The amendment (offered by the Committee on House
Administration) read:
---------------------------------------------------------------------------
9. 109 Cong. Rec. 3525, 88th Cong. 1st Sess.
---------------------------------------------------------------------------
. . . Page 1, line 5, strike out ``$697,000'' and insert
``$200,000''.
Page 1, line 11, after ``House'' insert a period and strike out
all that follows down through and including the period on page 2,
line 1 and insert in lieu thereof the following: ``Of such amount
$25,000 shall be available for each of six subcommittees of the
Committee on Education and Labor, and not to exceed $50,000 shall
be available to the Committee on Education and Labor. All amounts
authorized to be paid out of the contingent fund by this resolution
shall, in the case of each subcommittee, be paid on vouchers
authorized and signed by the chairman of the subcommittee, cosigned
by the chairman of the committee and approved by the Committee on
House Administration; in the case of the committee, such amount
shall be paid on vouchers authorized and signed by the chairman of
the committee and approved by the Committee on House
Administration.''
There had been alleged abuses in the hiring of committee staff, and
one of the members of the committee reported to the House that, ``we
(the members of the Committee on Education and Labor) had a bipartisan
front in the House Administration Committee to try to control the
expenditure of these funds.'' (10)
---------------------------------------------------------------------------
10. Id. at p. 3526.
---------------------------------------------------------------------------
Mr. John M. Ashbrook, of Ohio, a member of the Committee on
Education and Labor, explained the reason for the action:
(11)
---------------------------------------------------------------------------
11. Id. at p. 3530.
---------------------------------------------------------------------------
Mr. Ashbrook: Mr. Speaker, I wish to commend the Committee on
House Administration for this action in which it has vindicated the
entire membership of this House. Because of the manner in which the
affairs of the Committee on Education and Labor have been conducted
during the past 2 years, I feel that each Member of this body was
in the position of deciding whether or not we should condone and
continue the policies which will now be held in close check due to
the timely action of this watchdog committee.
Some will say that the cuts are too deep. I think not. As the
gentleman from Georgia [Mr. Landrum] so well put it, it will very
definitely mean cutting back on some of the employees whom we never
saw, rarely heard of,
[[Page 1723]]
and little benefited by. It will mean fewer opportunities for
lavish spending, fewer trips, and without doubt, less waste of
taxpayers' money. The basic work of our committee will be
accomplished on the fourth floor suite of the Old House Office
Building. It will be accomplished by Members of Congress whose pay
is not charged against this committee. If we buckle down and
proceed expeditiously, we can do as much or more with less costly
expenditure. The effort of the committee members and not the
dollars expended will be the true test of accomplishment.
Mr. Joe D. Waggonner, Jr., of Louisiana, gave further reasons for
the action taken: (12)
---------------------------------------------------------------------------
12. Id.
---------------------------------------------------------------------------
Mr. Waggonner: Mr. Speaker, as a member of the House
Administration Committee and a member of the Subcommittee on
Accounts of that committee, I have consistently opposed the
granting of Chairman Powell's budget request for $697,000. I have
maintained that his budget should be cut to the bare essential
needed for his committee to function because of the unacceptable
manner in which he has served in his capacity as chairman. I would
advocate even greater cuts in his budget except for the fact that I
do not want to cripple the good men who are members of his
committee and who have consistently done a good job. With the
addition of further restrictions as to how and by whom this money
is spent and for what purpose it is spent, I hope we can by this
action, restore the faith of the people in this committee and in
the Congress. Certainly that is my desire.
Sec. 12.3 The membership of a House committee, in a move to discipline
its chairman, amended the rules of the committee so as to transfer
authority from the chairman to the membership and the subcommittee
chairmen.
On Sept. 22, 1966, the membership of the House Committee on
Education and Labor, in a move to discipline Chairman Adam Clayton
Powell, of New York, amended the rules of the committee so as to
transfer authority from the chairman to the membership and the
subcommittee chairmen. A copy of the newly adopted rules was printed in
the Congressional Record.(13)
---------------------------------------------------------------------------
13. 112 Cong. Rec. 23797, 23798, 89th Cong. 2d Sess., Sept. 26, 1966.
---------------------------------------------------------------------------
Mr. Glenn Andrews, of Alabama, described the occasion to the House:
(14)
---------------------------------------------------------------------------
14. 112 Cong. Rec. 23722, 89th Cong. 2d Sess., Sept. 22, 1966.
---------------------------------------------------------------------------
. . . [A]s a member of the House Education and Labor Committee
of this body, I was present at this morning's historic meeting
[which was instrumental] in the action which was taken to limit the
powers of the chairman of the Education and Labor Committee.
Mr. John M. Ashbrook, of Ohio, stated to the House reasons set
forth for the action: (15)
---------------------------------------------------------------------------
15. 112 Cong. Rec. 23308, 89th Cong. 2d Sess., Sept. 20, 1966.
---------------------------------------------------------------------------
[[Page 1724]]
. . . I for one will vote to strip him [Mr. Powell] of all
powers or for any partial limitations on his powers because, on the
merits, he has exercised them in such a manner as to bring
discredit on the entire House of Representatives. . . .
. . . [O]ur chairman has been openly accused of 3 number of
violations of House Rules. . . . It is rumored that Mr. Powell's
wife gave him a power of attorney to sign [her House of
Representatives salary] checks. A House rule apparently makes it
illegal for Mrs. Powell to be paid for work in Puerto Rico.
Sec. 12.4 The members of a House committee took action against the
chairman of that committee by restricting his authority to appoint
special subcommittees.
In the 83d Congress, first session,(16) during debate on
a resolution (17) relating to expenditures by the House
Committee on Government Operations, mention was made of the fact that
the committee had recently disciplined its chairman (18) by
withdrawing from him authority to appoint special subcommittees, a
blanket authority which it had granted to him at the beginning of the
session.(19) The chairman had created some 12 or 13 special
subcommittees, and it was alleged that ``these subcommittees were
undertaking to operate outside the jurisdiction of the committee and
there was a suggestion made that they were infringing on the
jurisdiction of the regularly established subcommittees.''
(20) It was also alleged that the chairman had not consulted
with the ranking minority member or the committee membership in
creating the subcommittees, and that he appointed some minority members
to the special subcommittees without consulting the Democratic
(minority) members of the committee.(21)
---------------------------------------------------------------------------
16. 99 Cong. Rec. 10360-63, July 29, 1953.
17. H. Res. 339, amending H. Res. 150, 83d Cong. 1st Sess. [H. Rept.
No. 1020].
18. Clare Hoffman, of Michigan.
19. 99 Cong. Rec. 10362, remarks of Mr. Charles Halleck, of Indiana.
20. Id.
21. 99 Cong. Rec. 10362, remarks of Mr. John McCormack, of
Massachusetts.
---------------------------------------------------------------------------
The committee membership, in July 1953, reacquired the power to
authorize special subcommittees. The committee rules were changed to
provide that subcommittees could be created upon motion of the chairman
but subject to the approval of the committee.(22)
---------------------------------------------------------------------------
22. 99 Cong. Rec. 10362, remarks of Mr. Charles Halleck, of Indiana.
---------------------------------------------------------------------------
In addition, the Committee on House Administration reported out a
resolution (H. Res. 339),
[[Page 1725]]
after a hearing on July 22, 1953, at which all members of the Committee
on Government Operations were invited to be present. The resolution was
declared to be ``. . . a solution of a situation which was described as
intolerable by a considerable number of the members of the Committee on
Government Operations.'' (23)
---------------------------------------------------------------------------
23. 99 Cong. Rec. 10360, remarks of Mr. Karl M. LeCompte, of Iowa.
---------------------------------------------------------------------------
The resolution allotted specific funds to all but one of the
regular subcommittees, to be drawn on the voucher of the subcommittee
chairman, and allotted the remainder for committee expenses, expenses
of special subcommittees and the expenses of one regular
subcommittee.(24) (Note: Under H. Res. 150, which was
amended by H. Res. 339, provision had been made for having all vouchers
signed by the committee chairman.) (25)
---------------------------------------------------------------------------
24. 99 Cong. Rec. 10360, H. Res. 339.
25. Mr. Hoffman had raised a question of personal privilege and had
addressed the matter prior to House consideration of H. Res.
339. See 99 Cong. Rec. 10351-59, July 29, 1953.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 13. Expulsion
The House has the power to expel a Member under article I, section
5, clause 2 of the U.S. Constitution. It provides that each House may
``with the concurrence of two thirds, expel a Member.'' (26)
---------------------------------------------------------------------------
26. See House Rules and Manual Sec. Sec. 62 et seq. (1973). See also
Powell v McCormack, 395 U.S. 486, 507, footnote 27 (1969).
---------------------------------------------------------------------------
Expulsion is the most severe sanction that can be invoked against a
Member. The Constitution provides no explicit grounds for expulsion,
but the courts have set forth certain guidelines that may be applied in
such cases. Thus, the U.S. Supreme Court has remarked: ``The right to
expel extends to all cases where the offense is such as [to be]
inconsistent with the trust and duty of a Member.'' (27)
---------------------------------------------------------------------------
27. In re Chapman, 166 U.S. 661, 669 (1897).
---------------------------------------------------------------------------
One judge of the United States Court of Appeals for the District of
Columbia said in describing the elements of an analogous proceeding:
``That action was rooted in the judgment of the House as to what was
necessary or appropriate for it to do to assure the integrity of its
legislative performance and its institutional acceptability to the
people at large as a serious and responsible instrument of
government.'' (28)
---------------------------------------------------------------------------
28. Powell v McCormack, 395 F2d 577, concurring opinion of Judge
McGovan, p. 607 (C.A., D.C. 1968), reversed on other grounds,
395 U.S. 486.
``[A Member might be expelled] for that behavior which
renders him unfit to do his duties as a Member of the House or
that present conditions of mind or body which makes it unsafe
or improper for the House to have him in it.'' 2 Hinds'
Precedents Sec. 1286.
In the 63d Congress (1913) the House Committee on Elections
No. 1 stated in its report (H. Rept. No. 185; 6 Cannon's
Precedents Sec. 78) that the power of the House to expel one of
its Members is unlimited--a matter purely of discretion to be
exercised by a two-thirds vote from which there is no appeal.
However, in 1900, the majority report of the House special
committee in the exclusion case of Brigham H. Roberts, Member-
elect from Utah, 56th Cong., H. Rept. No. 85, Pt. II, 1 Hinds'
Precedents Sec. 476 stated: ``1. Neither House of Congress has
ever expelled a Member for acts unrelated to him as a Member or
inconsistent with his public trust and duty as such. 2. Both
Houses have many times refused to expel where the guilt of the
Member was apparent; where the refusal to expel was put upon
the ground that the House or Senate, as the case might be, had
no right to expel for an act unrelated to the Member as such,
or because it was committed prior to his election.''
---------------------------------------------------------------------------
[[Page 1726]]
Expulsion is described by Cushing as ``. . . in its very nature
discretionary, that is, it is impossible to specify beforehand all the
causes for which a member ought to be expelled and, therefore, in the
exercise of this power, in each particular case, a legislative body
should be governed by the strictest justice; for if the violence of
party should be let loose upon an obnoxious member, and a
representative of the people discharged of the trust conferred on him
by his constituent, without good cause, a power of control would thus
be assumed by the representative body over the constituent, wholly
inconsistent with the freedom of election.'' (29)
---------------------------------------------------------------------------
29. Cushing, Elements of the Law and Practice of Legislative Assemblies
in the United States of America, 2d ed., 1866, Sec. 625.
---------------------------------------------------------------------------
Expulsion is generally administered only against Members, i.e.,
those who have been sworn in.(30) However, in one case, at
the beginning of the Civil War, a Member-elect to the House who did not
appear and who had taken up arms against the United States, was
``expelled,'' no one having raised the point that he had not been sworn
in.(1)
---------------------------------------------------------------------------
30. See Powell v McCormack, 395 U.S. 486, 507 (1969) in which the court
said: ``Powell was `excluded' from the 90th Congress, i.e., he
was not administered the oath of office and was prevented from
taking his seat. If he had been allowed to take the oath and
subsequently had been required to surrender his seat, the
House's action would have constituted an `expulsion'.''
1. 2 Hinds' Precedents Sec. 1262. For a discussion of the power to
expel a Member-elect, see 1 Hinds' Precedents Sec. 476.
---------------------------------------------------------------------------
[[Page 1727]]
The House has expelled only two Members and one Member-elect. All
instances occurred during the Civil War and in each the person was in
rebellion against the United States or had taken up arms against
it.(2)
---------------------------------------------------------------------------
2. 2 Hinds' Precedents Sec. Sec. 1261, 1262.
The Senate has expelled 15 Senators, most of them for
activities related to the Civil War.
Senator William Blount (Tenn.) was expelled in 1797 on
charges of conspiracy. 2 Hinds' Precedents Sec. 1263. For the
Civil War cases, see 2 Hinds' Precedents Sec. Sec. 1266-1270.
In 1877, the Senate annulled its action in expelling a
Senator during the Civil War. 2 Hinds' Precedents Sec. 1243.
---------------------------------------------------------------------------
The constitutional power of expulsion has been applied to the
conduct of Members during their terms of office and not to action taken
by them prior to their election.(3)
---------------------------------------------------------------------------
3. 6 Cannon's Precedents Sec. Sec. 56, 238; 2 Hinds' Precedents
Sec. Sec. 1284-1286, 1288; 1 Hinds' Precedents Sec. 481. See
also Powell v McCormack, 395 U.S. 486, 508, 509 (1969).
---------------------------------------------------------------------------
Where a Member of Congress has been convicted of a crime, neither
the House nor the Senate will normally act to consider expulsion until
the judicial processes have been exhausted.(4)
---------------------------------------------------------------------------
4. Burton v U.S., 202 U.S. 344 (1906); 2 Hinds' Precedents Sec. 1282;
6 Cannon's Precedents Sec. 258.
---------------------------------------------------------------------------
Expulsion proceedings are initiated by the introduction of a
resolution containing explicit charges (5) and which may
provide for a committee to investigate and report on the
matter.(6) While referral has been to the Committee on the
Judiciary or to a select committee,(7) such a resolution now
would be referred to the Committee on Standards of Official Conduct
[see Rule XI clause 19, House Rules and Manual (1973)].
---------------------------------------------------------------------------
5. 2 Hinds' Precedents Sec. Sec. 1261, 1262.
6. 2 Hinds' Precedents Sec. Sec. 1649, 1650; 3 Hinds' Precedents
Sec. 2653; 6 Cannon's Precedents Sec. 400.
7. 2 Hinds' Precedents Sec. Sec. 1621, 1656; 3 Hinds' Precedents
Sec. Sec. 1831, 1844.
In one recent Congress, however, a resolution to expel was
referred to the Committee on the Judiciary, 115 Cong. Rec.
41011, 91st Cong. 1st Sess., Dec. 23, 1969 [H. Res. 772].
---------------------------------------------------------------------------
In proceedings for expulsion, the House, having declined to permit
a trial at the bar, may allow a Member to be heard on his own defense
by unanimous consent, or through time yielded by the Member calling up
the resolution, and to present a written defense, but not to appoint
another Member to speak on his behalf.(8)
---------------------------------------------------------------------------
8. 2 Hinds' Precedents Sec. Sec. 1273, 1275 1286.
---------------------------------------------------------------------------
A resolution of expulsion should be limited in its application to
one
[[Page 1728]]
Member only, though several may be involved. Separate resolutions (and
separate reports) should be prepared on each Member.(9)
---------------------------------------------------------------------------
9. 2 Hinds' Precedents Sec. 1275.
---------------------------------------------------------------------------
The expulsion of a Member gives rise to a question of
privilege.(10) Floor debate is under the hour
rule.(11)
---------------------------------------------------------------------------
10. 3 Hinds' Precedents Sec. 2648; 6 Cannon's Precedents Sec. 236.
11. 8 Cannon's Precedents Sec. 2448.
---------------------------------------------------------------------------
Where a Member resigns while expulsion proceedings against him are
being considered, the committee may be discharged from further action
thereon, the proceedings discontinued,(12) or the House may
adopt a resolution censuring the resigned Member.(13)
---------------------------------------------------------------------------
12. 6 Cannon's Precedents Sec. 238; 2 Hinds' Precedents Sec. 1275.
13. 2 Hinds' Precedents Sec. Sec. 1239, 1273.
---------------------------------------------------------------------------
The penalty for conviction under certain statutes applicable to
Members sometimes includes a prohibition against holding any office of
honor, trust, or profit under the United States.(14)
Conviction does not automatically result in loss of office for a
Member, however; he must be expelled by the House or Senate, as the
case may be.(15)
---------------------------------------------------------------------------
14. See, for example, the statutes listed below:
18 USC Sec. 201--Soliciting or receiving a bribe or
anything of value for or because of any official act performed
or to be performed.
18 USC Sec. 203--Soliciting or receiving any outside
compensation for particular services.
18 USC Sec. 204--Prohibition against practice in Court of
Claims by Member.
18 USC Sec. 2381--Treason.
18 USC Sec. 2385--Advocating overthrow of government.
18 USC Sec. 2387--Activities adversely affecting armed
forces.
15. U.S. Const. art. I, Sec. 5, clause 2; see Burton v U.S., 202 U.S.
344 (1906). It is questionable under the doctrine of Powell v
McCormack, 395 U.S. 486 (1969), that such conviction could
prevent a person from running for the House or Senate,
subsequently. -------------------
---------------------------------------------------------------------------
In re Hinshaw
Sec. 13.1 A resolution (H. Res. 1392) calling for the expulsion of a
Member was reported adversely by the Committee on Standards of
Official Conduct where the Member had been convicted of bribery
under California law for acts occurring while he served as a county
tax assessor and before his election to the House, and where his
appeal from the conviction was still pending; the committee found
that although the conviction related to Mr. Hinshaw's moral
turpitude, it did not relate to his official
[[Page 1729]]
conduct while a Member of Congress.
On Sept. 7, 1976, the Committee on Standards of Official Conduct
submitted its report (H. Rept. 94-1477), In the Matter of
Representative Andrew J. Hinshaw. The report was referred to the House
Calendar and ordered printed. Excerpts from the report are set out
below:
The Committee on Standards of Official Conduct, to which was
referred the resolution (H. Res. 1392), resolving that
Representative Andrew J. Hinshaw be expelled from the House of
Representatives, having considered the same, reports adversely,
thereupon, and recommends that the resolution be not agreed to.
Part I.--Summary of Report
House Resolution 1392 seeks the expulsion of Representative
Andrew J. Hinshaw of California from the U.S. House of
Representatives pursuant to article I, section 5, clause 2 of the
Constitution. Representative Hinshaw has been convicted of bribery
under California law for acts occurring while he served as assessor
of Orange County, such acts having been committed prior to his
election to Congress. An appeal of the conviction is currently
pending before the Fourth Appellate District, Court of Appeal,
State of California.
Since his conviction, Representative Hinshaw has complied with
House Rule XLIII, paragraph 10 and has not participated in voting
either in committee or on the floor of the House.
* * * * *
The committee believes that the House of Representatives, when
considering action against a Member who is currently involved in an
active, nondilatory, criminal proceeding against him, such as the
Hinshaw case, ordinarily should follow a policy of taking no
legislative branch action until the conviction is finally resolved.
The committee wishes to express clearly, however, that in this case
its conclusion is based entirely on the instant set of facts and in
no way implies that different circumstances may not call for a
different conclusion.
Having considered the facts of this particular case and
recognizing that Representative Hinshaw has been convicted under a
State law that, while reflecting on his moral turpitude, does not
relate to his official conduct while a Member of Congress, it is
the recommendation of the Committee on Standards of Official
Conduct that House Resolution 1392 be not agreed to.
* * * * *
Part III.--Committee Action
On September 1, 1976, the committee met in executive session to
consider House Resolution 1392. This report was adopted on that
date by a vote of 10 to 2, a quorum being present.
Part IV.--Statement of Facts
Andrew J. Hinshaw is a Member of the House of Representatives
representing the 40th District of California. He was first elected
to Congress on November 7, 1972, and was sworn in as a Member of
the 93d Congress in January 1973. He was reelected in No
[[Page 1730]]
vember 1974 to the 94th Congress and assumed the seat he now
occupies on January 14, 1975. Prior to his first election to
Congress, Representative Hinshaw served for 8 years as the elected
assessor of Orange County, Calif.
Public accusations that Representative Hinshaw had taken bribes
while assessor of Orange County first appeared in local newspapers
in May 1974. However, it was not until May 6, 1975, that a
California State grand jury returned an 11-count indictment against
Representative Hinshaw charging him with various felonies, all
relating to his official conduct as assessor for Orange County.
Eight of the eleven counts were dismissed upon motion prior to
trial. A jury trial was had on Representative Hinshaw's ``not
guilty'' plea to the three remaining counts.
On January 26, 1976, a jury found Representative Hinshaw guilty
of two of the remaining counts and not guilty of the third. The
jury found as true that on May 18, 1972, Representative Hinshaw,
then the duly elected assessor for Orange County, Calif., and a
candidate for Congress in a primary election, solicited and
received a campaign contribution of $1,000 for the purpose of
influencing his official conduct as assessor of Orange County; and
that on December 13, 1972, after Representative Hinshaw's election
to Congress but prior to being seated as a Member thereof, he
solicited and received certain stereo equipment as consideration
for official action theretofore taken by him as assessor of Orange
County. The two acts proved constitute the crime of bribery under
California law.
On February 25, 1976, Representative Hinshaw was sentenced to
the term provided by law on each count, the terms to run
concurrently. California law provides that the crime of bribery is
punishable by imprisonment in the State prison for a term of 1 to
14 years and, if an elected official be convicted of bribery, the
additional penalty of forfeiture of office and permanent
disqualification from holding other elective office in California
may be imposed. The trial judge refused to impose the forfeiture
and disqualification penalty in Representative Hinshaw's case,
holding that it applied only to State officials.
Representative Hinshaw has appealed his conviction, and the
appeal is now pending before the Fourth Appellate District, Court
of Appeal of California. The time for filing of appellant's brief
has been extended until September 12, 1976. No date has yet been
set for oral argument. After his conviction, Representative Hinshaw
filed for reelection to Congress. In the primary election held on
June 8, 1976, Representative Hinshaw was defeated.
Part V.--Analysis of Precedents and Policies
The right to expel may be invoked whenever in the judgment of
the body a Member's conduct is inconsistent with the public trust
and duty of a Member. But, the broad power of the House to expel a
Member has been invoked only three times in the history of
Congress, all three cases involving treason.
Historically, when a criminal proceeding is begun against a
Member, it has been the custom of the House to
[[Page 1731]]
defer action until the judicial proceeding is final. The committee
recognized the soundness of this course of action when it reported
House Resolution 46 (94th Cong. 1st Sess., H. Rept. No. 94-76)
adopting rule XLIII, paragraph 10.
In its report, the committee stated it would act ``where an
allegation is that one has abused his direct representational or
legislative position--or his 'official conduct' has been
questioned''--but where the allegation involves a violation of
statutory law, and the charges are being expeditiously acted upon
by the appropriate authorities, the policy has been to defer action
until the judicial proceedings have run their course.
A ``crime,'' as defined by statutory law, can cover a broad
spectrum of behavior, for which the sanction may vary. Due to the
divergence between criminal codes, and the judgmental
classification of crimes into misdemeanors and felonies, no clear-
cut rule can be stated that conviction for a particular crime is a
breach of ``official conduct.'' Therefore, rather than specify
certain crimes as rendering a Member unfit to serve in the House,
the committee believes it necessary to consider each case on facts
alone.
Due process demands that an accused be afforded recognized
safeguards which influence the judicial proceedings from its
inception through final appeal. Although the presumption of
innocence is lost upon conviction, the House could find itself in
an extremely untenable position of having punished a Member for an
act which legally did not occur if the conviction is reversed or
remanded upon appeal.
Such is the case of Representative Hinshaw. The charges against
him stem from acts taken while county assessor, and allege bribery
as defined by California statute. The committee, while not taking a
position on the merits of this case, concludes that no action
should be taken at this time. We cannot recommend that the House
risk placing itself in a constitutional dilemma for which there is
no apparent solution.
We further realize that resolution of the appeal may extend
beyond the adjournment sine die of the 94th Congress. In fact, no
future action may be required since Representative Hinshaw's
electorate chose not to renominate him and he has stated, in
writing, that he will resign if the appeal goes against him.
This committee cannot be indifferent to the presence of a
convicted person in the House of Representatives; it will not be
so. The course of action we recommend will uphold the integrity of
the House while affording respect to the rights of the Member
accused. We recognize that under another set of circumstances other
courses of action may be in order; but, in the matter of
Representative Andrew Hinshaw, we believe we have met the challenge
and our recommendation is well founded.
When House Resolution 1392 was called up as privileged on Oct. 1,
1976, by its sponsor, Mr. Charles E. Wiggins, of California, it was
laid on the table without debate.
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 14. Exclusion
The power of the House to exclude a Member rests upon Article
[[Page 1732]]
I, section 5, clause 1 of the Constitution, which provides: ``Each
House shall be the judge of the elections, returns, and qualifications
of its own Members. . . .'' The qualifications referred to are those
set forth in Article I, section 2, clause 2, of the Constitution, ``No
person shall be a Representative who shall not have attained to the age
of twenty-five years, and have been seven years a citizen of the United
States, and who shall not, when elected, be an inhabitant of that state
in which he shall be chosen.'' (l6) Neither the Congress nor
the House can add to these qualifications, nor can a
state.(17)
---------------------------------------------------------------------------
16. Powell v McCormack, 395 U.S. 486 (1969). See also Sec. 12, supra.
17. See Powell v McCormack, 395 U.S. 486 (1969); Hellman v Collier, 217
Md. 93, 141 A.2d 908 (1958); Richardson v Hare, 381 Mich. 304,
160 N.W. 2d 883 (1968); State ex rel. Chavez v Evans, 29 N. M.
578, 446 P.2d 445 (1968). And see H. Rept. No. 90-27, 90th
Cong. 1st Sess., ``In Re Adam Clayton Powell, Report of Select
Committee Pursuant to H. Res. 1'' (1967) p. 30.
---------------------------------------------------------------------------
A Member-elect may be excluded from the House pending an
investigation as to his initial and final right to the
seat.(18) And although a two-thirds vote is required to
expel a Member, only a majority is required to exclude a Member who has
been permitted to take the oath of office pending a final determination
by the House of his right to the seat.(19) The vote
necessary to exclude on the ground of failure to meet one of the
constitutional qualifications is a majority of those voting, a quorum
being present, regardless of whether a final determination by the House
of a Member's right to a seat has been made.(20) A vote on
an amendment in the nature of a substitute proposing exclusion is not a
vote to expel, and therefore does not require a two-thirds vote of the
Members present.(1)
---------------------------------------------------------------------------
18. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess., Jan. 10, 1967 [H. Res.
1, relating to the right of Adam Clayton Powell to take the
oath].
19. 113 Cong. Rec. 17, 90th Cong. 1st Sess., Jan. 10, 1967.
20. See the ruling by Speaker John W. McCormack (Mass.), 113 Cong. Rec.
17, 90th Cong. 1st Sess., Jan. 10, 1967; see also 1 Hinds'
Precedents Sec. Sec. 420, 429, 434.
1. See 113 Cong. Rec. 5020 90th Cong. 1st Sess., Mar. 1, 1967.
Parliamentarian's Note: In the Powell case the Speaker
responded to a parliamentary inquiry as to the vote required on
an amendment in the nature of a substitute proposing exclusion,
stating that only a majority vote was required to adopt the
amendment, but the Speaker was not called upon to rule whether
the resolution as so amended would likewise require only a
majority vote.
---------------------------------------------------------------------------
A resolution proposing the exclusion of a Member-elect presents
[[Page 1733]]
a question of privilege.(2) Debate thereon is under the hour
rule.(3) A Member-elect has been permitted by unanimous
consent to address the House during the debate on the question of
whether he should be sworn in.(4)
---------------------------------------------------------------------------
2. See 3 Hinds' Precedents Sec. 2594.
3. See 113 Cong. Rec. 15, 90th Cong. 1st Sess., Jan. 10, 1967.
4. 113 Cong. Rec. 15, 90th Cong. 1st Sess., Jan. 10, 1967. See also 1
Hinds' Precedents Sec. 474.
---------------------------------------------------------------------------
The House has authorized its committee to take testimony in a case
where the qualifications of a Member were in issue.(5)
Beginning in the 94th Congress, the Committee on House Administration
was granted general subpena authority in all matters within its
jurisdiction. Furthermore, a committee investigating the qualifications
of a Member-elect may allow his presence and permit suggestions from
him during the discussion of the plan and scope of the
inquiry.(6) It may also give him the opportunity to testify
in his own behalf and to be present and to cross-examine
witnesses.(7)
---------------------------------------------------------------------------
5. 1 Hinds' Precedents Sec. 427.
6. 1 Hinds' Precedents Sec. 420.
7. 1 Hinds' Precedents Sec. Sec. 420,
475. -------------------
---------------------------------------------------------------------------
Exclusion of Adam Clayton Powell
Sec. 14.1 The House adopted a resolution referring to a select
committee questions as to the right of a Member-elect to be sworn
and to take his seat, permitting him the pay and allowances of the
office pending a final determination by the House and requiring the
committee to report back to the House within a prescribed
time.(8) Subsequently, the House agreed to a resolution
excluding him from membership on the ground, among others, that he
had wrongfully diverted House funds to his own use. However, the
U.S. Supreme Court ruled that a Member-elect can be excluded from
the House only for a failure to meet the constitutional
qualifications of age, citizenship, and inhabitancy.
---------------------------------------------------------------------------
8. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess., Jan. 10, 1967 [H. Res.
1, relating to the right of Adam Clayton Powell (N.Y.) to take
his seat].
---------------------------------------------------------------------------
On Mar. 1, 1967, the House agreed to a resolution excluding Member-
elect Adam Clayton Powell, from the House, on the ground, among others,
that he had wrongfully diverted House funds to his own
use.(9)
---------------------------------------------------------------------------
9. See H. Rept. No. 90-27, 90th Cong. 1st Sess. (1967), ``In Re Adam
Clayton Powell, Report of Select Committee Pursuant to H. Res.
1,'' p. 33; see also H. Res. 278, 90th Cong. 1st Sess., 113
Cong. Rec. 4997, Mar. 1, 1967. The motion for the previous
question on this resolution containing the select committee
recommendation was defeated (113 Cong. Rec. 5020), and an
amendment in the nature of a substitute excluding the Member-
elect was proposed and adopted (113 Cong. Rec. 5037, 5038).
---------------------------------------------------------------------------
[[Page 1734]]
On Mar. 9, 1967, Mr. Powell filed suit in the U.S. District Court,
District of Columbia, asking (inter alia) that the Speaker and other
defendants be enjoined from enforcing the resolution by which he was
excluded from the House, and seeking a writ of mandamus directing the
Speaker to administer him the oath of office as a Member of the 90th
Congress.(10)
---------------------------------------------------------------------------
10. 113 Cong. Rec. 6035-42, 6048, 90th Cong. 1st Sess., Mar. 9, 1967.
Mr. Powell had been requested to stand aside on the opening day
of the Congress. He was not sworn in, but instead a resolution
was adopted referring the question of his prima facie and his
final right to a seat to a select committee [H. Res. 1, 90th
Cong. 1st Sess., Jan. 10, 1967, 113 Cong. Rec. 26, 27]. The
House, on Mar. 1, 1967, defeated a motion for the previous
question relating to the select committee resolution [H. Res.
278] which would have admitted the Member-elect as having met
the constitutional qualifications of age, citizenship, and
inhabitancy, but would have provided that (1) Mr. Powell be
censured, (2) that he be fined $1,000 a month from his salary
until $40,000 of misused funds had been paid back, and (3) that
his seniority would commence as from the day he took the oath
as a Member of the 90th Congress. 113 Cong. Rec. 4998 et seq.
A point of order that a substitute amendment providing for
the exclusion by the House of Member-elect Adam Clayton Powell
would forbid the Member-elect from serving in the Senate during
the 90th Congress, a power said to be beyond that of the House,
and that it would forbid a later voting of the Member-elect if
he were elected to fill the vacancy caused by his own
exclusion, another power beyond the House, was overruled by the
Chair as having been made too late in the proceedings. 113
Cong. Rec. 5037, 90th Cong. 1st Sess., Mar. 1, 1967.
---------------------------------------------------------------------------
The action was dismissed by the district court for want of
jurisdiction and by the court of appeals for lack of
justiciability.(11) The Supreme Court reviewed the two lower
court opinions, holding that the courts had jurisdiction, that the
issue was justiciable, and that
---------------------------------------------------------------------------
11. In the suit, Powell v McCormack, 266 F Supp 354 (D.C., D.C. 1967),
the district court granted a motion to dismiss for want of
jurisdiction. On appeal to the United States Court of Appeals
for the District of Columbia, the judgment was affirmed on
grounds of lack of justiciability, Powell v McCormack, 395 F2d
577 (C.A.D.C. 1968).
---------------------------------------------------------------------------
[[Page 1735]]
the power of the House under the U.S. Constitution in judging the
qualifications of its Members was limited to the qualifications of age,
citizenship, and inhabitancy, as set forth in article I, section 2,
clause 2.(12)
---------------------------------------------------------------------------
12. Powell v McCormack, 395 U.S. 486 (1969).
---------------------------------------------------------------------------
On May 1, 1967, the Speaker laid before the House a letter from the
Clerk advising receipt of a certificate showing the election of Mr.
Powell to fill the vacancy created when the House excluded Mr. Powell
from membership and declared his seat vacant. Mr. Powell did not appear
to claim the seat.(13)
---------------------------------------------------------------------------
13. In response to a parliamentary inquiry, the Speaker indicated that
if Mr. Powell appeared to take the oath and was again
challenged, the House would have to determine at that time what
action it should take. 113 Cong. Rec. 11298, 90th Cong. 1st
Sess., May 1, 1967.
---------------------------------------------------------------------------
Effect of Felony Conviction
Sec. 14.2 The Speaker was authorized to administer the oath of office
to a Member-elect whose right to a seat in the House was challenged
on the ground that he had forfeited his rights as a citizen by
reason of conviction of a felony.
On Mar. 9, 1933, at the convening of the 73d Congress, the Speaker
(14) was authorized, by resolution,(15) to
administer the oath of office to a Member-elect whose right to a seat
in the House was questioned by a Member who asserted that the Member-
elect had forfeited his rights as a citizen by reason of conviction of
a felony.
---------------------------------------------------------------------------
14. Henry T. Rainey (Ill.).
15. 77 Cong. Rec. 139, 73d Cong. 1st Sess. [H. Res. 6].
---------------------------------------------------------------------------
Member-elect Francis H. Shoemaker, of Minnesota, was asked to stand
aside during the swearing in after a resolution was offered by Mr.
Albert E. Carter, of California, providing that the prima facie and
final right to a seat for Mr. Shoemaker be referred to the Committee on
Elections No. 1.(16)
---------------------------------------------------------------------------
16. 77 Cong. Rec. 71, 73, 73d Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Shoemaker had been convicted in a federal district court in
Minnesota in 1930 of an offense involving the mailing of defamatory
literature, and had been put on probation for five years. After a
verbal altercation with the judge, he was sentenced to imprisonment for
a year and a day. He served the sentence in the federal penitentiary in
Leavenworth, Kansas, prior to his election to the House in
1932.(17)
---------------------------------------------------------------------------
17. Id. at pp. 74, 132, 133, 135.
---------------------------------------------------------------------------
[[Page 1736]]
It was alleged that under the constitution of Minnesota, Mr.
Shoemaker, after the felony conviction, had become ineligible to vote
or hold any office. Nevertheless, it was pointed out that he had voted
in the 1932 election, had run for federal office, and that the state
could not disqualify him in the latter capacity.(18)
---------------------------------------------------------------------------
18. Id. at p. 74.
---------------------------------------------------------------------------
On Mar. 10, 1933, Mr. Paul J. Kvale, of Minnesota, offered an
amendment in the nature of a substitute providing that the Speaker be
authorized and directed to administer the oath to Mr. Shoemaker and
that the question of his final right to a seat be referred to the
Committee on Elections No. 2. Debate ensued as to the responsibility of
the House to bar the Member-elect at the door before giving him a
hearing, as some precedents of the House suggested, or to follow other
precedents and administer the oath initially and then, at a later date,
consider his final right to a seat.
At the conclusion of debate the amendment was adopted on a division
vote, 230 to 75.(19) The resolution as amended was agreed
to, and its preamble, which referred to charges against Mr. Shoemaker,
was stricken by unanimous consent.(20)
---------------------------------------------------------------------------
19. Id. at pp. 132-139.
20. Id. at p. 139.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 15. Suspension of Privileges
At one time, the view was expressed by a select committee that the
House may impose a punishment upon a Member, when appropriate, other
than censure or expulsion. The select committee in the case of Adam
Clayton Powell, of New York, stated: (21)
---------------------------------------------------------------------------
21. H. Rept. No. 90-27, 90th Cong. 1st Sess., 1967, ``In Re Adam
Clayton Powell, Report of Select Committee Pursuant to H. Res.
1,'' pp. 28, 29.
---------------------------------------------------------------------------
Although rarely exercised, the power of a House to impose upon
a Member punishment other than censure but short of expulsion seems
established. There is little reason to believe that the framers of
the Constitution, in empowering the Houses of Congress to
``punish'' Members for disorderly behavior and to ``expel'' (art.
I, sec. 5, clause 2), intended to limit punishment to censure.
Among the other types of punishment for disorderly behavior
mentioned in the authorities are fine and suspension.
In the case of Senators Tillman and McLaurin in 1902, during
the 57th Congress, the Senate specifically considered the question
of punishment other than expulsion or censure. The case arose on
February 22, 1903, and involved a heated altercation on the floor
of the Senate in which the two men came to blows. The Senate went
immediately into executive session and adopted an order declaring
both Senators to be in contempt of the Senate
[[Page 1737]]
and referring the matter to a committee. The President pro tempore
ruled that neither Senator could be recognized while in contempt
and subsequently directed the clerk to omit the names of McLaurin
and Tillman from a rollcall vote on a pending bill. On February 28,
the committee to which the matter had been referred recommended a
resolution of censure, which the Senate adopted, stating that
Tillman and McLaurin are ``censured for the breach of the
privileges and dignity of this body, and from and after the
adoption of this resolution the order adjudging them in contempt of
the Senate shall be no longer in force and effect'' (2 Hinds, sec.
1665). ``The penalty,'' according to ``Senate Election, Expulsion
and Censure Cases'' (p. 96), ``thus, was censure and suspension for
6 days--which had already elapsed since the assault.''
In the committee report on the Tillman-McLaurin case, three of
the 10 member majority submitted their views on the issue of
suspension (2 Hinds, pp. 1141-1142):
. . . The Senate has not like power with Parliament in
punishing citizens for contempt, but it has like power with
Parliament in punishing Senators for contempt or for any
disorderly behavior or for certain like offenses. Like
Parliament, it may imprison or expel a member for offenses.
``The suspension of members from the service of the House is
another form of punishment.'' (May's Parliamentary Practice,
53.) This author gives instances of suspension in the
seventeenth century and shows the frequent suspension of
members under a standing order of the House of Commons, passed
February 23, 1880.
* * * * *
The Senate may punish the Senators from South Carolina by
fine, by reprimand, by imprisonment, by suspension by a
majority vote, or by expulsion with the concurrence of two-
thirds of its members.
The offense is well stated in the majority report. It is
not grave enough to require expulsion. A reprimand would be too
slight a punishment. The Senate by a yea and-nay vote has
unanimously resolved that the said Senators are in contempt. A
reprimand is in effect only a more formal reiteration of that
vote. It is not sufficiently severe upon consideration of the
facts.
A minority of four committee members, however, dissented
``from so much of the report of the committee as asserts the
power of the Senate to suspend a Senator and thus deprive a
State- of its vote . . .'' (p. 1141).
However, by its adoption of Rule XLIII clause 10 (22) in
the 94th Congress, relating to the voluntary abstention from voting and
from participating in other legislative business by Members who have
been convicted of certain crimes, the House indicated its more recent
view that a Member could not be deprived involuntarily of his right to
vote in the House. The constitutional impediments to such deprivation
were discussed in the debate on the proposed change in the
rule.(23)
---------------------------------------------------------------------------
22. See House Rules and Manual Sec. 939 (1977) .
23. 23. For discussion of the debate and adoption of the rule, see
Sec. 15.1, infra.
---------------------------------------------------------------------------
[[Page 1738]]
Grounds; Duration of Suspension
Sec. 15.1 In the 94th Congress, Rule XLIII was amended to provide that
a Member convicted of certain crimes ``should refrain from
participation in the business of each committee of which he is a
member and should refrain from voting on any question at a meeting
of the House, or of the Committee of the Whole House.. . .'' The
conviction must be by a court of record and the crime must be one
for which a sentence of two or more years' imprisonment may be
imposed. The period of abstention continues until the Member is
subsequently reelected or until juridical or executive proceedings
result in the ``reinstatement of the presumption of his
innocence.'' (1)
---------------------------------------------------------------------------
1. Rule XLIII clause 10, House Rules and Manual Sec. 939 (1977).
---------------------------------------------------------------------------
It is clear from the debate on House Resolution 46,(2)
which added clause 10, to Rule XLIII that the amendment was drafted to
safeguard the reputation of the House and at the same time preserve the
right to representation of the constituents of the Member's
district.(3) Several of the proponents of the resolution
emphasized the voluntary nature of compliance with the rule:
---------------------------------------------------------------------------
2. H. Res. 46, 94th Cong. 1st Sess. (1975).
3. 121 Cong. Rec. 10339-45, 94th Cong. 1st Sess., Apr. 16, 1975.
---------------------------------------------------------------------------
Mr. [John J.] Flynt [Jr., of Georgia]: . . . Let me emphasize
that there is nothing mandatory or compulsory in this resolution,
nor is there any specific enforcement authority. However, a Member
who ignored the stated policy of the House would do so at the risk
of subjecting himself to disciplinary procedures provided under
House rules. . . .
Mr. [Melvin] Price [of Illinois]: . . . Let me point out that
there is nothing mandatory about the procedure recommended, but it
would be expected that any Member affected would abide by the
spirit of the policy. The policy could be waived by the House in
specific cases if it deemed such a waiver would be in the public
interest.
The reason for the voluntary nature of the Member's abstention was
also made clear:
Mr. [Robert C.] Eckhardt [of Texas]: Mr. Speaker, it would seem
to me that to deprive a person mandatorily of his right to vote and
participate on the committee would be tantamount to making him
stand aside altogether in his function as a Congressman and would
go to the question of his qualifications to serve. As I understand,
the Powell case said that may only be for one of three reasons:
[[Page 1739]]
The question of age, the question of citizenship, and the question
of residency within the State from which a man comes.
So the only way that there could be a mandatory exclusion from
the exercise of the right of any Congressman to represent his
district, it would seem to me, would be on a two-thirds vote on
expulsion. Would the gentleman agree?
Mr. Flynt: Mr. Speaker, the gentleman from Texas is correct.
The committee felt--and I believe that the committee was
unanimous--that to have attempted to make this mandatory would have
been unconstitutional. It would have deprived the district, which
the Member was elected to represent, of representation, as well as
invoking a sanction upon the Member himself. . . .
Mr. Eckhardt: Mr. Speaker, I may say, to a certain extent
practically, one may be depriving his district of representation
when one tells him that he shall only participate at his peril on
grounds of certain further action, which I suppose might include
expulsion.
The constitutionality of depriving a Member's constituents of their
representative vote troubled several Members:
Mr. [Don] Edwards [of California]: . . . The measure before us
punishes a Member of the House by attempting to deprive that person
of the right to vote and participate in the legislative process.
However, in our effort to so discipline a Member of Congress, we
would effectively disenfranchise the nearly one-half million
Americans who elected that person to represent them. Such an action
undermines the basic interest of a constituency in their
representative government. Any constituency has a legitimate
interest in being represented by its preferred choice who possesses
all the constitutional eligibility requirements, even though
objected to on other grounds, such as his unwillingness to support
existing laws.
A resolution such as this could put the House in the position
of encouraging the loss of representation to a constituency whose
representative may have committed an act of civil disobedience as a
matter of conscience, perhaps even with the approval of that
constituency.
The Constitution has already provided this body with the remedy
of expelling a Member for misconduct. Under that clause, the
expelled Member may be immediately replaced by another person to
represent the constituency. However, under the provisions of the
measure before us, there can be no replacement for the punished
Member. By the terms of the resolution a constituency would be left
without a voice in the House of Representatives for the duration of
the Congress or until the disciplined Member was acquitted.
I feel that the problems raised by this measure go to the heart
of our form of government. One of the most fundamental principles
of this representative democracy is, in the words of Alexander
Hamilton, ``that the people should choose whom they please to
govern them.''
The argument was also advanced that the amendment exceeded the
powers of the House:
Mr. [Robert F.] Drinan [of Massachusetts]: Mr. Speaker, on
November
[[Page 1740]]
14, 1973, this House debated and passed a resolution nearly
identical to the one now before us. It expressed the sense of this
body that Members convicted of a crime punishable by more than 2
years in prison should refrain from participating in committee
business and from voting on the floor.
On that occasion, I strongly opposed the resolution because, in
my judgment, it exceeded the powers of the House. The Constitution
is quite plain on the matter of disciplining Members. Article I,
section 5, clause 2 provides:
Each House may . . . punish its Members for disorderly
Behaviour, and, with the Concurrence of two thirds, expel a
Member.
That provision marks the limits of permissible action; no other
sanction against an elected Representative is allowed. The
resolution we debate today intrudes into the prohibited sphere.
Under the Constitution, the House may discipline its Members
only for disorderly behavior. The sanction of expulsion, while
authorized, is reserved for outrageous conduct which effectively
disrupts the orderly workings of the legislative process, in short,
a serious violation of the Member's oath of office.
It seems to me that an elected Representative is entitled to
the full privileges of the House, unless suspended or expelled.
There is no middle ground. We cannot have two classes of Members:
one with all the rights, and the other with only partial powers.
Such bifurcation in our body is at variance with the constitutional
scheme which guides our actions. Yet that is what this resolution,
if passed, would accomplish.
Several other issues were raised during the debate. In response to
a question concerning the omission of the effect of guilty pleas, Mr.
Flynt, who had introduced the resolution, stated that a guilty plea was
identical to a conviction, which was the term employed in the
resolution. Similarly, Mr. Phillip Burton, of California, expressed
concern as to whether an indeterminate sentence might result in House
sanctions. Again, Mr. Flynt responded that it was a purpose of the
Committee on Standards of Official Conduct to have these sanctions
``triggered by a conviction on a count in an indictment which amounted
to a felony.''
Mr. Flynt further clarified several anticipated consequences of the
adoption of the amendment:
During the period of nonvoting, the Member would not be barred
from attending sessions of the House or from carrying on normal
representational activities, other than voting. His salary and
other benefits would continue. . . .
As the report points out, the committee does not intend to
deprive a Member of his right to attend sessions of the House or
committees or to preclude him from recording himself ``present'' on
a yea-and-nay vote or from responding to a quorum call. A Member
thus could protect his attendance record without affecting the
outcome of the vote.
However, I do feel that a Member affected by the rule should
not be a
[[Page 1741]]
party to a live pair, since such a pair could affect the outcome by
offsetting the vote of the individual with whom he is paired.
The House could at any time waive application of the resolution
as to specific legislation or issues, thereby restoring the
Member's full voting rights in such instances without violating the
spirit of the rule.
Sec. 15.2 The House, in the 93d Congress, adopted a resolution
expressing the sense of the House that Members convicted of certain
crimes should refrain from participation in committee business and
from voting in the House until the presumption of innocence is
reinstated or until re-elected to the House.
On Nov. 14, 1973,(4) the House agreed to the following
resolution:
---------------------------------------------------------------------------
4. 119 Cong. Rec. 36946, 93d Cong. 1st Sess. [H. Res. 700, providing
for consideration of H. Res. 128], H. Rept. No. 93-616,
Committee on Standards of Official Conduct.
Parliamentarian's Note: A similar resolution (H. Res. 933,
92d Cong.) had been reported in the preceding Congress but had
not been called up by the House. That resolution had been
prompted by the conviction of former Representative Dowdy for
receiving a bribe, but when he voluntarily agreed not to
participate in House or committee proceedings, the resolution
was not called up in the House. Such resolutions are not
privileged under Rule XI clause 22, as they do not recommend
action by the House with respect to an individual Member.
---------------------------------------------------------------------------
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
re-elected 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.
In its report on the resolution, the Committee on Standards of
Official Conduct, stated, in part, at page 2: (5)
---------------------------------------------------------------------------
5. H. Rept. No. 93-616, 93d Cong. 1st Sess., Oct. 31, 1973.
Parliamentarian's Note: In the debate on the resolution the
question was raised that even though it was a sense-of-the-
House resolution, would it, if followed in a specific case,
deprive the voters in the Member's district of a constitutional
right to be fully represented? ( See the remarks of
Representative Robert F. Drinan [Mass.], 119 Cong. Rec. 36945,
93d Cong. 1st Sess.) For an opposite point of view see, Luther
Stearns Cushing, Elements of the Law and Practice of
Legislative Assemblies in the United States of America, 2d ed.
(1866) Sec. 626. Cushing conceded that during suspension, the
voters would be deprived of the service of their
Representative, but contended that the rights of the voters
would be no more infringed by this proceeding than by an
exercise of the power to imprison.
---------------------------------------------------------------------------
[[Page 1742]]
To the question of when to act, the committee adopted a policy
which essentially is: where an allegation is that one has abused
his direct representational or legislative position--or his
``official conduct''--the committee concerns itself forthwith,
because there is no other immediate avenue of remedy. But where an
allegation involves a possible violation of statutory law, and the
committee is assured that the charges are known to and are being
expeditiously acted upon by the appropriate authorities, the policy
has been to defer action until the judicial proceedings have run
their course. This is not to say the committee abandons concern in
statutory matters--rather, it feels it normally should not
undertake duplicative investigations pending judicial resolution of
such cases.
The implementation of this policy has shown, through
experience, only one need for revision. For the House to withhold
any action whatever until ultimate disposition of a judicial
proceeding, could mean, in effect, the barring of any legislative
branch action, since the appeals processes often do, or can be made
to, extend over a period greater than the 2-year term of the
Member.
Since Members of Congress are not subject to recall and in the
absence of any other means of dealing with such cases short of
reprimand, or censure, or expulsion (which would be totally
inappropriate until final judicial resolution of the case), public
opinion could well interpret inaction as indifference on the part
of the House.
The committee recognizes a very distinguishable link in the
chain of due process--that is the point at which the defendant no
longer has claim to the presumption of innocence. This point is
reached in a criminal prosecution upon conviction by judge or jury.
It is to this condition and only to this condition that the
proposed resolution reaches.
The committee reasons that the preservation of public
confidence in the legislative process demands that notice be taken
of situations of this type.
Voluntary Withdrawal
Sec. 15.3 Following a conviction for bribery and related offenses, a
Member refrained from voting on the floor or in committee and from
participating in committee business.
Parliamentarian's Note: Representative John Dowdy, of Texas, was
convicted under federal statutes of bribery, perjury, and conspiracy on
Dec. 31, 1971, in a federal district court in Baltimore, Maryland. On
Jan. 23, 1972, the court sentenced Mr. Dowdy to 18 months in prison and
a fine of $25,000.
On June 21, 1972, Mr. Dowdy filed a letter with Speaker Carl
[[Page 1743]]
Albert, of Oklahoma, promising to refrain from voting on the floor or
in committee and from participating in committee business pending an
appeal of his conviction.(6)
---------------------------------------------------------------------------
6. See Congressional Quarterly Weekly Report, July 8, 1972, p. 1167.
See also 6 Cannon's Precedents Sec. Sec. 402, 403, wherein
a select committee assumed that a Member indicted under federal
law would take no part whatever in any of the business of the
House or its committees until final disposition of the case was
made.
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CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 16. Censure; Reprimand
In the House, the underlying concept governing the censure of a
Member for misconduct is that of breach of the rights and privileges of
the House.(7) As indicated in a report of a select committee
of the House,(8) the power of each House to censure its
Members ``for disorderly behavior'' is found in article I section 5
clause 2 of the U.S. Constitution. It is discretionary in character,
and upon a resolution for censure of a Member for misconduct each
individual Member considering the matter is at liberty to act on his
sound discretion and vote according to the dictates of his own judgment
and conscience.
---------------------------------------------------------------------------
7. 2 Hinds' Precedents Sec. 1644.
8. H. Rept. No. 90-27, 90th Cong. 1st Sess., Feb. 23, 1967, ``In Re
Adam Clayton Powell, Report of the Select Committee Pursuant to
H. Res. 1,'' pp. 24-30.
---------------------------------------------------------------------------
The conduct for which censure may be imposed is not limited to acts
relating to the Member's official duties. See In re Chapman (166 U.S.
661 [1897]). The committee considering censure of Senator Joseph
McCarthy stated (S. Rept. No. 2508, 83d Cong., p. 22): ``It seems clear
that if a Senator should be guilty of reprehensible conduct unconnected
with his official duties and position, but which conduct brings the
Senate into disrepute, the Senate has the power to censure.''
During its history, through the 94th Congress, the House of
Representatives has censured 17 Members and one Delegate and has
reprimanded one Member in the 94th Congress. All but one of the
instances of censure occurred during the 19th century, 13 Members being
censured between 1864 and 1875. The last censure in the House was
imposed in 1921. In the Senate, there are four instances of censure,
including the censure of Senator Joseph McCarthy in 1954.
Most cases of censure have involved the use of unparliamentary
language, assaults upon a Mem
[[Page 1744]]
ber or insults to the House by introduction of offensive
resolutions,~(9) but in five cases in the House and one in
the Senate censure was based on corrupt acts by a Member, and in
another Senate case censure was based upon noncooperation with and
abuse of Senate committees.(10)
---------------------------------------------------------------------------
9. See 2 Hinds' Precedents Sec. Sec. 1246-1249, 1251, 1256, 1305,
1621, 1656; 6 Cannon's Precedents Sec. 236.
10. See 2 Hinds' Precedents Sec. Sec. 1239, 1273, 1274, 1286; 6
Cannon's Precedents Sec. 239; ``Senate Election, Expulsion and
Censure Cases,'' S. Doc. No. 71, 87th Cong., pp. 125-27, 152-
54.
In 1870, during the 41st Congress, the House censured John
T. DeWeese, B. F. Whittemore, and Roderick R. Butler for the
sale of appointments to the U. S. Military and Naval Academies.
In Butler's case, the Member had appointed to the Military
Academy a person not a resident of his district and
subsequently received a political contribution from the cadet's
father. Censure of DeWeese and Whittemore was voted
notwithstanding that each had previously resigned. A resolution
to expel Butler was defeated upon failure to obtain a two-
thirds vote, whereupon a resolution of censure was voted in
which the House ``declare[d] its condemnation'' of his conduct,
which it characterized as ``an unauthorized and dangerous
practice'' (2 Hinds' Precedents Sec. Sec. 1239, 1273, 1274).
In 1929 Senator Hiram Bingham (Conn.) was censured for
having placed on the Senate payroll, and used as a consultant
on a pending tariff bill, one Charles L. Eyanson, who was
simultaneously in the employ of the Manufacturers Association
of Connecticut. The Senate adopted a resolution of censure
providing that Senator Bingham's conduct regarding Eyanson
``while not the result of corrupt motives on the part of the
Senator from Connecticut, is contrary to good morals and
senatorial ethics and tends to bring the Senate into dishonor
and disrepute, and such conduct is hereby condemned.'' 6
Cannon's Precedents Sec. 239.
---------------------------------------------------------------------------
In 1873, during the 42d Congress, a special investigating committee
was appointed to inquire into charges that Representatives Oakes Ames
and James Brooks had been bribed in connection with the Credit Mobilier
Co. and the Union Pacific Railroad.(11) Al
[[Page 1745]]
though the committee recommended that both Members be expelled, the
House adopted substitute censure resolutions in which it ``absolutely
condemn[ed]'' the conduct of Ames and Brooks (2 Hinds' Precedents
Sec. 1286).
---------------------------------------------------------------------------
11. The committee reported that Representative Oakes Ames ``has been
guilty of selling to Members of Congress shares of stock in the
Credit Mobilier of America for prices much below the true value
of such stock, with intent thereby to influence the votes and
decisions of such Members in matters to be brought before
Congress for action.'' With regard to Representative James
Brooks, the committee found that he ``did procure the Credit
Mobilier Co. to issue and deliver to Charles H. Neilson, for
the use and benefit of said Brooks, 50 shares of the stock of
said company at a price much below its real value, well knowing
that the same was so issued and delivered with intent to
influence the votes and decisions of said Brooks as a Member of
the House.''
---------------------------------------------------------------------------
Although there has been a divergence of views concerning the power
of a House to expel a Member for acts committed during a preceding
Congress, the right of a House to censure a Member for such prior acts
is supported by clear precedent in both Houses of Congress--namely, the
case of Ames and Brooks in the House of Representatives and the case of
Senator McCarthy in the Senate. In Ames and Brooks the acts for which
censure was voted occurred more than five years prior to censure and
two congressional elections had intervened.
Thus, the broad power of the House to censure Members extends to
acts occurring during a prior Congress. Whether such powers should be
invoked in such circumstances is a matter committed to the discretion
and judgment of the House upon consideration of the nature of the prior
acts, whether they were known to the electorate at the previous
election and to the prior House, and the extent to which they directly
involve the authority, integrity, dignity, or reputation of the
House.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 90-27, 90th Cong. 1st Sess., Feb. 23, 1967. See also
Sec. 8.4, supra.
---------------------------------------------------------------------------
Censure, like other forms of discipline except expulsion, is by a
majority of those voting, a quorum being present. (6 Cannon's
Precedents Sec. 236.) The House itself must order the censure. The
Speaker cannot, of his own authority, censure a Member.(13)
---------------------------------------------------------------------------
13. 2 Hinds' Precedents Sec. Sec. 1344, 1345; 6 Cannon's Precedents
Sec. 237.
---------------------------------------------------------------------------
A censure resolution may call for direct and immediate action by
the House; (14) or it may recommend that a committee be
appointed to investigate and report to the House.~l5~ A
House select committee may recommend censure of a Member along with
other forms of punishment in response to a resolution to investigate
and recommend as to the initial and final right to a
seat.(16)
---------------------------------------------------------------------------
14. 2 Hinds' Precedents Sec. Sec. 1246-1251, 1254-1258; 6 Cannon's
Precedents Sec. Sec. 236, 239.
15. 2 Hinds' Precedents Sec. Sec. 1649-1651, 1655 1656.
16. 113 Cong. Rec. 4997, 90th Cong. 1st Sess., Mar. 1, 1967; see 113
Cong. Rec. 24, 26, 27, 90th Cong. 1st Sess., Jan. 10, 1967.
---------------------------------------------------------------------------
[[Page 1746]]
Floor debate on a resolution of censure is under the hour
rule.(17) The House has permitted the Member to be heard in
debate as a matter of course without permission being asked or
given,(18) or by unanimous consent.(19) And the
Member controlling debate under the hour rule can yield time to the
Member being censured. In one instance, after a Member had explained,
the House reconsidered its vote of censure and reversed
it.(20) In some situations where Members have apologized
following the initiation of censure proceedings, the House has accepted
the apology and terminated the proceedings.(2~1)
---------------------------------------------------------------------------
17. See 5 Hinds' Precedents Sec. 4990.
18. 2 Hinds' Precedents Sec. Sec. 1246, 1253.
19. 2 Hinds' Precedents Sec. 1656.
20. 2 Hinds' Precedents Sec. 1653.
21. See, for instance, 2 Hinds' Precedents Sec. Sec. 1250, 1257, 1258,
1652; 6 Cannon's Precedents Sec. 7006.
---------------------------------------------------------------------------
After the House has ordered censure, it is normally administered by
the Speaker to the Member at the bar of the House.(22)
---------------------------------------------------------------------------
22. See 2 Hinds' Precedents Sec. Sec. 1251, 1259; 6 Cannon's Precedents
Sec. 236.
---------------------------------------------------------------------------
The House has on occasion made a distinction between censure and
reprimand, the latter being a somewhat lesser punitive measure than
censure. A censure is administered by the Speaker to the Member at the
bar of the House, whereas a reprimand is administered to the Member
``standing in his place'' (23) or merely by way of the
adoption of a committee report. Thus in 1976,(24) the House
administered a reprimand to Mr. Robert L. F. Sikes, of Florida, by
adopting by a vote of 381 yeas to 3 nays a resolution (H. Res. 1421)
which provided that the House adopt the report of the Committee on
Standards of Official Conduct on the investigation of a complaint
against Mr. Sikes. The Speaker administered no oral reprimand. The
report (1) declared that (a) failure of Mr. Sikes to report
certain stockholdngs as required by House Rule XLIV was deserving of a
reprimand, and (b) that the investment by him in the stock of a bank at
a naval base in Florida and activities in promoting its establishment
was deserving of a reprimand. The report provided that in each
instance, ``the adoption of this report by the House shall constitute
such reprimand.'' (2)
---------------------------------------------------------------------------
23. Luther Sterns Cushing, Elements of the Law and Practice of
Legislative Assemblies in the United States of America, 2d ed.
(1866), Sec. 682.
24. Cong. Rec. (daily ed.), 94th Cong. 2d Sess., July 29, 1976.
1. H. Rept. No. 94-1364, 94th Cong. 2d Sess., July 23. 1976.
2. Id. at p. 4.
---------------------------------------------------------------------------
[[Page 1747]]
Censure of Adam Clayton Powell
Sec. 16.1 A House select committee recommended censure, along with
other penalties, against a Member-elect.
On Mar. 1, 1967,(3) the House considered a resolution
censuring Adam Clayton Powell, of New York, for, inter alia, ignoring
the processes and authority of the New York state courts and for
improper use of government funds. The resolution provided:
---------------------------------------------------------------------------
3. H. Res. 278, 113 Cong. Rec. 4997, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
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
[[Page 1748]]
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.
The House voted down the motion for the previous question on the
resolution and substituted an amendment to exclude, which was
adopted.(4)
---------------------------------------------------------------------------
4. 113 Cong. Rec. 5020, 5037, 90th Cong. 1st Sess., Mar. 1, 1967. See
also Sec. 14.1, supra.
---------------------------------------------------------------------------
Censure of Joseph R. McCarthy
Sec. 16.2 The Senate, by resolution reported by a select committee,
censured a Senator for his noncooperation with and abuse of certain
Senate committees during an investigation of his conduct as a
Senator.
In 1951, during the 82d Congress, a resolution had been introduced
calling for an investigation to determine whether expulsion proceedings
should be instituted against Senator Joseph McCarthy, of Wisconsin, by
reason, inter alia, of his activities in the 1950 Maryland senatorial
election; the resolution was referred to the Subcommittee on Privileges
and Elections, whose Chairman was Senator Guy M. Gillette, of Iowa.
Senator McCarthy rejected invitations to attend the hearings of the
Gillette subcommittee, termed the charges against him a Communist
smear, and stated that the hearings were designed to expel him ``for
having exposed Communists in Government.'' In 1954, during the
succeeding 83d Congress, a censure resolution against Senator McCarthy
was introduced and referred to a select committee headed by Senator
Arthur V. Watkins, of Utah. The Watkins committee recommended censure
in part on the ground that Senator McCarthy's conduct toward the
Gillette subcommittee, its members and the Senate ``was contemptuous,
contumacious, and denunciatory, without reason, or justification, and
was obstructive to
[[Page 1749]]
legislative processes.'' (5) After debate, the Senate
adopted a resolution (S. Res. 301, as amended) censuring Senator
McCarthy on two counts:
---------------------------------------------------------------------------
5. 100 Cong. Rec. 16392, 83d Cong. 2d Sess., Dec. 2, 1954 [S. Res.
301, amended], S. Rept. No. 83-2508.
---------------------------------------------------------------------------
Resolved, That the Senator from Wisconsin, Mr. McCarthy, failed
to cooperate with the Subcommittee on Privileges and Elections of
the Senate Committee on Rules and Administration in clearing up
matters referred to that subcommittee which concerned his conduct
as a Senator and affected the honor of the Senate and, instead,
repeatedly abused the subcommittee and its members who were trying
to carry out assigned duties, thereby obstructing the
constitutional processes of the Senate, and that this conduct of
the Senator from Wisconsin, Mr. McCarthy, is contrary to senatorial
traditions and is hereby condemned.
Sec. 2. The Senator from Wisconsin, Mr. McCarthy, in writing to
the chairman of the Select Committee To Study Censure Charges (Mr.
Watkins) after the select committee had issued its report and
before the report was presented to the Senate charging three
members of the select committee with ``deliberate deception'' and
``fraud'' for failure to disqualify themselves; in stating to the
press on November 4, 1954, that the special Senate session that was
to begin November 8, 1954, was a ``lynch party''; in repeatedly
describing this special Senate session as a ``lynch bee'' in a
nationwide television and radio show on November 7, 1954; in
stating to the public press on November 13, 1954, that the chairman
of the select committee (Mr. Watkins) was guilty of ``the most
unusual, most cowardly thing I've heard of'' and stating further:
``I expected he would be afraid to answer the questions, but didn't
think he'd be stupid enough to make a public statement''; and in
characterizing the said committee as the ``unwitting handmaiden,''
``involuntary agent,'' and ``attorneys in fact'' of the Communist
Party and in charging that the said committee in writing its report
``imitated Communist methods--that it distorted, misrepresented,
and omitted in its effort to manufacture a plausible
rationalization'' in support of its recommendations to the Senate,
which characterizations and charges were contained in a statement
released to the press and inserted in the Congressional Record of
November 10, 1954, acted contrary to senatorial ethics and tended
to bring the Senate into dishonor and disrepute, to obstruct the
constitutional processes of the Senate, and to impair its dignity;
and such conduct is hereby condemned.
As noted above, one of the counts on which censure was voted in
1954 concerned his conduct toward the Gillette subcommittee in 1952
during the preceding Congress. The report of the select committee
discussed at length the contention by Senator McCarthy that since he
was re-elected in 1952, the committee lacked power to consider, as a
basis for censure, any conduct on his part occurring prior to Jan. 3,
1953, when he took his seat for a
[[Page 1750]]
new term (S. Rept. No. 2508, 83d Cong., pp. 20-23, 30, 31). The
committee stated (p. 22):
While it may be the law that one who is not a Member of the
Senate may not be punished for contempt of the Senate at a
preceding session, this is no basis for declaring that the Senate
may not censure one of its own Members for conduct antedating that
session, and no controlling authority or precedent has been cited
for such position.
The particular charges against Senator McCarthy, which are the
basis of this category, involve his conduct toward an official
committee and official committee members of the Senate.
The reelection of Senator McCarthy in 1952 was considered by
the select committee as a fact bearing on this proposition. This
reelection is not deemed controlling because only the Senate itself
can pass judgment upon conduct which is injurious to its processes,
dignity, and official committees.
Elaborating on its view that only the Senate can pass judgment upon
conduct adverse to its processes and committees, the select committee
added (pp. 30-31):
Nor do we believe that the reelection of Senator McCarthy by
the people of Wisconsin in the fall of 1952 pardons his conduct
toward the Subcommittee on Privileges and Elections. The charge is
that Senator McCarthy was guilty of contempt of the Senate or a
senatorial committee. Necessarily, this is a matter for the Senate
and the Senate alone. The people of Wisconsin can only pass upon
issues before them; they cannot forgive an attack by a Senator upon
the integrity of the Senate's processes and its committees. That is
the business of the Senate.
Censure of Thomas J. Dodd
Sec. 16.3 The Senate, by resolution reported by its Select Committee on
Standards and Conduct, censured a Senator for exercising the power
and influence of his office to obtain and use for his personal
benefit funds from the public raised through political testimonials
and a political campaign.
The Senate, by resolution reported by its Select Committee on
Standards and Conduct,(6) censured Senator Thomas J. Dodd,
of Connecticut, for exercising the power and influence of his office to
obtain and use for his personal benefit funds from the public raised
through political testimonials and campaigns.
---------------------------------------------------------------------------
6. 113 Cong. Rec. 17073, 90th Cong. 1st Sess., June 23, 1967 [S. Res.
112], S. Rept. No. 90-193.
---------------------------------------------------------------------------
The committee conducted hearings from June, 1966 through March,
1967 on allegations that the Senator had misused campaign funds for
personal purposes.(7) From its investigations the committee
concluded in its re
[[Page 1751]]
port that seven fund-raising events were held for the Senator for the
period 1961 through 1965, and that the receipts from these totaled some
$203,983. All but one of the events was represented as being held for
political campaign purposes, either to raise funds for the Senator's
1964 campaign or to pay off debts from his 1958 and 1964 campaigns for
a seat in the Senate.(8) The report stated:
---------------------------------------------------------------------------
7. S. Rept. No. 90-193, p. 9.
8. Id. at p. 24
---------------------------------------------------------------------------
From the circumstances of all the fund-raising events,
including the exclusive control of the funds by members of Senator
Dodd's staff, the extensive participation by members of Senator
Dodd's staff, the close political relationship between Senator Dodd
and the sponsors of the fund-raising events, the preoccupation of
the organizers with Senator Dodd's apparently political
indebtedness, and the partisan political nature of the printed
programs, Senator Dodd's knowledge of the political character of
these events must be presumed.(9)
---------------------------------------------------------------------------
9. Id. at p. 24.
---------------------------------------------------------------------------
In addition to the $203,983, Senator Dodd and the political
committees supporting his re-election to the Senate in 1964 received
campaign contributions of at least $246,290. The expenditure of these
funds was summarized by the committee, as follows: (10)
---------------------------------------------------------------------------
10. Id. at p. 25.
---------------------------------------------------------------------------
From the proceeds of the seven fund-raising events from 1961
through 1965 and the contributions to the 1964 political campaign,
Senator Dodd or his representatives received funds totaling at
least $450,273. From these funds, Senator Dodd authorized the
payment of at least $116,083 for his personal purposes. The
payments included Federal income tax, improvements to his
Connecticut home, club expenses, transfers to a member of his
family, and certain other transportation, hotel, restaurant and
other expenses incurred by Senator Dodd outside of Connecticut or
by members of his family or his representatives outside of the
political campaign period. Senator Dodd further authorized the
payment of an additional amount of at least $45,233 from these
proceeds for purposes which are neither clearly personal nor
political. These payments were for repayment of his loans in the
sum of $41,500 classified by Senator Dodd as ``political-personal''
and $3,733 for bills for food and beverages.
In addition, after the 1964 campaign, Senator Dodd received a
campaign contribution of $8,000 from the International Latex Corp.,
and, for a period of 21 months, he accepted as gifts the loans of three
automobiles in succession from a constituent and used them for personal
transportation.(11)
---------------------------------------------------------------------------
11. On seven trips from 1961 through 1965, Senator Dodd requested and
accepted reimbursement from both the Senate and private
organizations for the same travel. Id. at p. 25. This was a
charge which the committee included in its censure resolution,
but which was deleted by an amendment offered by Senator Allen
J. Ellender (La.). See 113 Cong. Rec. 17020, 90th Cong. 1st
Sess., June 23, 1967.
---------------------------------------------------------------------------
[[Page 1752]]
The committee found Senator Dodd's conduct censurable, as follows:
(12)
---------------------------------------------------------------------------
12. S. Rept. No. 90-193, p. 25.
---------------------------------------------------------------------------
Senator Dodd exercised the influence and power of his office as
a United States Senator to directly or indirectly obtain funds from
the public through testimonials which were political in character,
over a period of five years from 1961 to 1965. The notices of these
fund-raising events received by the public either stated that the
funds were for campaign expenses or deficits or failed to state for
what purposes the funds were to be used. Not one solicitation
letter, invitation, ticket, program, or other written communication
informed the public that the funds were to be used for personal
purposes. Senator Dodd used part of the proceeds from these
political testimonials and part of the contributions from his
political campaign of 1964 for his personal benefit. These acts,
together with his requesting and accepting reimbursements from 1961
through 1965 for expenses from both the Senate and private
organizations for the same travel, comprise a course of conduct
which deserves the censure of the Senate, is contrary to accepted
morals, derogates from the public trust expected of a Senator, and
tends to bring the Senate into dishonor and disrepute
The committee reported a resolution of censure, as follows:
Resolved, That it is the judgment of the Senate that the
Senator from Connecticut, Thomas J. Dodd, for having engaged in a
course of conduct over a period of five years from 1961 to 1965 of
exercising the influence and power of his office as a United States
Senator, as shown by the conclusions in the investigation by the
Select Committee on Standards and Conduct
(a) to obtain and use for his personal benefit, funds from the
public through political testimonials and a political campaign, and
(b) to request and accept reimbursements for expenses from both
the Senate and private organizations for the same travel
(13) deserved the censure of the Senate; and he is so
censured for his conduct, which is contrary to accepted morals,
derogates from the public trust expected of a Senator, and tends to
bring the Senate into dishonor and disrepute.(14)
---------------------------------------------------------------------------
13. See footnote 11, supra.
14. S. Res. 112, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
Debate on the resolution (15) began on June 13,
1967.(16) Senator John Stennis, of Mississippi, chairman of
the committee, stated to the Senate that the censure resolution was not
bottomed upon any one specific action or violation, nor on one
expenditure or a few expenditures and not on one matter which could
have been an error. He said:
---------------------------------------------------------------------------
15. The resolution, S. Res. 112, was introduced Apr. 27, 1967; see 113
Cong. Rec. 10977.
16. 113 Cong. Rec. 15663, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
. . . It is based on the fact that the practice happened over
and over and
[[Page 1753]]
over again, so much so, and over a long period of time, as to
become a pattern of operation.
The words used in the charge itself are ``course of conduct.''
It amounted to a course of conduct that was wrong on its face, and
therefore brought the Senate into disrepute.(17)
---------------------------------------------------------------------------
17. Id. at p. 15664.
---------------------------------------------------------------------------
On June 22, Senator John Tower, of Texas, offered an amendment to
delete ``censure'' and substitute therefor ``reprimand.'' He declared
that: (18)
---------------------------------------------------------------------------
18. Id. at p. 16979.
---------------------------------------------------------------------------
This proposal would give us the opportunity to express our
displeasure, our disapproval, and our disassociation, but at the
same time avoid the severity of censure . . . inasmuch as there is
no precedent for censure on the basis of means of raising funds for
private political use, in the absence of an existing rule or code
on the subject.
The amendment was defeated, 9 to 87.(19)
---------------------------------------------------------------------------
19. Id. at p. 16986.
---------------------------------------------------------------------------
After debate, which continued until June 23, 1967, the Senate
adopted the resolution, by a vote of yeas 92, nays 5, after first
striking the second charge relating to double-billing for several
trips.(20)
---------------------------------------------------------------------------
20. Id. at p. 17020.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 17. Imposition of Fine
A fine may be levied by the House against a Member pursuant to its
constitutional authority to punish its Members (Art. I, Sec. 5, clause
2).(1)
---------------------------------------------------------------------------
1. See H. Rept. No. 90-27, 90th Cong. 1st Sess. (1967), ``In Re Adam
Clayton Powell, Report of Select Committee Pursuant to H. Res.
1,'' pp. 28, 29.
See also, 2 Hinds' Precedents 1665, p. 1142, for the
Senate censure case of McLaurin and Tillman, both Senators from
South Carolina, 57th Cong.; see also remarks of Senator Mills
(Tex.) in debate on charges against Senator Roach (N.D.), 25
Cong. Rec. 162, 53d Cong. 1st Sess., Apr. 15,
1893. -------------------
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Fine of Member For Acts Committed in Prior Congress
Sec. 17.1 The House agreed to a resolution providing for the imposition
of a fine against a Member-elect charged with misuse of
appropriated funds in a prior Congress.
In 1967, the recommendation of a House committee that Member-elect
Adam Clayton Powell, of New York, be fined was considered and rejected
in favor of a resolution that he be excluded.(2) Two
---------------------------------------------------------------------------
2. See H. Rept. No. 90-27, 90th Cong. 1st Sess. (1967), ``In Re Adam
Clayton Powell, Report of Select Committee Pursuant to H. Res.
1,'' p. 33. The committee recommended that ``(3) Adam Clayton
Powell, as punishment (for improper expenditure of House funds
for private purposes, and for maintaining a person on his
clerk-hire payroll who performed no official duties whatever or
did not perform them in Washington, D.C., or in the Member's
district), pay the Clerk of the House, to be disposed of by him
according to law, $40,000; that the Sergeant at Arms of the
House be directed to deduct $1,000 per month from the salary
otherwise due Mr. Powell and pay the same to the Clerk, said
deductions to continue until said sum of $40,000 is fully paid;
and that said sums received by the Clerk shall offset any civil
liability of Mr. Powell to the United States of America with
respect to the matters referred to in paragraphs second and
third above (matter in parentheses).''
See also H. Res. 278, 90th Cong. 1st Sess. The motion for
the previous question on this resolution containing the select
committee recommendation was defeated (113 Cong. Rec. 5020,
Mar. 1, 1967), and a substitute amendment excluding the Member-
elect was proposed and adopted (113 Cong. Rec. 5037, 5038, Mar.
1, 1967). See also Sec. 14.1, supra.
--------------------------------------------------------------------------
[[Page 1754]]
years later, however, on Jan. 3, 1969,(3) the House agreed
to a resolution which included a provision for a fine of $25,000 to be
deducted on a monthly basis from Mr. Powell's salary.
---------------------------------------------------------------------------
3. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res.
2]. After having been excluded from the 90th Congress (see 14,
supra), Mr. Powell won re-election to the 91st Congress, but
was required to pay a fine for improper expenditures made prior
to the 90th Congress.
---------------------------------------------------------------------------
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
B. NATURE AND FORMS OF DISCIPLINARY MEASURES
Sec. 18. Deprivation of Seniority Status
Under the U.S. Constitution, the House is authorized to deprive a
Member of his seniority status as a form of disciplinary
action.(4)
---------------------------------------------------------------------------
4. See Sec. 18.2, infra.
---------------------------------------------------------------------------
Procedure
Sec. 18.1 A Member may be reduced in committee seniority as a result of
party discipline enforced through the machinery of his party--the
caucus and the Committee on Committees.
Parliamentarian's Note: In 1965, two Democratic Members who had
refused to support the Presidential candidate of their party were
reduced in committee seniority as the result of party discipline
enforced through the machinery of the party-the caucus and the
Committee on Committees.(5)
---------------------------------------------------------------------------
5. One Member (Albert Watson [S.C.]) resigned from the House, 111
Cong. Rec. 805, 806, 89th Cong. 1st Sess., Jan. 15, 1965, and
was then re-elected as a member of the other political party in
a special election called to fill the vacancy. The other (John
B. Williams [Miss.]) was voted to the bottom of two committees,
111 Cong. Rec. 809, 89th Cong. 1st Sess., Jan. 15, 1965.
---------------------------------------------------------------------------
[[Page 1755]]
As a matter of party disciplinary policy, the Democratic Caucus
instructed the Committee on Committees to assign the ``last position''
on a committee to a particular Member. But other Members subsequently
elected to the same committee were junior to him in committee
seniority.(6)
---------------------------------------------------------------------------
6. See 112 Cong. Rec. 27486, 89th Cong. 2d Sess., Oct. 18, 1966,
wherein committee member John Bell Williams (Miss.) was advised
that a newly elected Member would rank below Mr. Williams in
seniority.
---------------------------------------------------------------------------
In 1967, the Democratic Committee on Committees reported to the
House a resolution leaving vacancies on certain standing committees
pending further consideration by the caucus of committee assignments
and seniority thereon of a Member who had, in the preceding Congress,
been stripped of his committee seniority (at the direction of the
caucus) and assigned to the last position on the committees, and who
had asked that he not be assigned to any committee pending a final
determination by the caucus.(7)
---------------------------------------------------------------------------
7. 113 Cong. Rec. 1086, 90th Cong. 1st Sess., Jan. 23, 1967, relating
to the assignment of committee positions of John Bell Williams
(Miss.).
---------------------------------------------------------------------------
Deprivation of Seniority Status For Acts Committed in Prior Congress
Sec. 18.2 Deprivation of seniority status is a form of disciplinary
action that may be invoked by the House against a Member, pursuant
to a committee's recommendation, under article I, section 5, clause
2 of the U.S. Constitution, for acts committed in a prior Congress.
In the 90th Congress, a committee of the House recommended that a
Member-elect, Adam Clayton Powell, of New York, be deprived of his
seniority status and subjected to certain other penalties for his
conduct in a prior Congress.(8)
---------------------------------------------------------------------------
8. See H. Rept. No. 90-27, 90th Cong. 1st Sess. (1967), ``In Re Adam
Clayton Powell, Report of Select Committee Pursuant to H. Res.
1,'' p. 33; see also H. Res. 278, 90th Cong. 1st Sess., 113
Cong. Rec. 4997, Mar. 1, 1967. The motion for the previous
question on this resolution containing the select committee
recommendation was defeated (113 Cong. Rec. 5020, Mar. 1,
1967), and a substitute amendment excluding the Member-elect
was proposed and adopted (113 Cong. Rec. 5037, 5038, Mar. 1,
1967). See Sec. 14.1, supra.
The recommendation of the select committee was
characterized by a Member: ``Never before has any Member of the
Congress been stripped of his seniority in the course of
(punishment) proceedings.'' 113 Cong. Rec. 5006, Mar. 1, 1967,
remarks by Representative John Conyers, Jr. (Mich.).
---------------------------------------------------------------------------
[[Page 1756]]
In the 91st Congress, the House agreed to a resolution which, among
other things, reduced the seniority of Mr. Powell to that of first-term
Congressman (thus eliminating consideration of any prior service in the
computation of seniority).(9)
---------------------------------------------------------------------------
9. 9. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H.
Res. 2]. r. Powell had been excluded by the House in the 90th
Congress, but had been reelected to the 91st Congress. The
resolution [H. Res. 2] also provided for a fine of $25,000
against Mr. Powell to be deducted on a monthly basis from his
salary, and specified that Mr. Powell had to take the oath
before Jan. 15, 1969, or his seat would be declared vacant.
[[Page 1757]]
CHAPTER 12
Conduct or Discipline of Members, Officers, or Employees
APPENDIX
Opinions of the Committee on Standards of Official Conduct
Advisory
Opinion
No.
Subject:
Communications with Federal agencies....................... 1
Clerk-hire allowance....................................... 2
Travel at expense of foreign governments................... 3
Acceptance of nonpaid transportation....................... 4
ADVISORY OPINION NO. 1
(Issued January 26, 1970)
On the Role of a Member of the House of Representatives in
Communicating with Executive and Independent Federal Agencies
Reason for Issuance.--A number of requests have come to the
Committee for its advice in connection with actions a Member of
Congress may properly take in discharging his representative function
with respect to communications on constituent matters. This advisory
opinion is written to provide some guidelines in this area in the hope
they will be of assistance to Members.
Background.--The first Article in our Bill of Rights provides that
``Congress shall make no law . . . abridging the . . . right of the
people . . . to petition the Government for a redress of grievances.''
The exercise of this Right involves not only petition by groups of
citizens with common objectives, but increasingly by individuals with
problems or complaints involving their personal relationships with the
Federal Government. As the population has grown and as the Government
has enlarged in scope and complexity, an increasing number of citizens
find it more difficult to obtain redress by direct communication with
administrative agencies. As a result. the individual turns increasingly
to his most proximate connection with his Government, his
Representative in the Congress, as evidenced by the fact that
congressional offices devote more time to constituent requests than to
any other single duty.
The reasons individuals sometimes fail to find satisfaction from
their petitions are varied. At the extremes, some grievances are simply
imaginary rather than real, and some with merit are denied for lack of
thorough administrative consideration.
Sheer numbers impose requirements to standardize responses. Even if
mechanical systems function properly and timely, the stereotyped
responses they produce suggest indifference. At best, responses to
grievances in form letters or by other automated means leave much to be
desired.
Another factor which may lead to petitioner dissatisfaction is the
occasional failure of legislative language, or the administrative
interpretation of it, to cover adequately all the merits the
legislation intended. Specific cases arising under these conditions
test the legislation and
[[Page 1758]]
provide a valuable oversight disclosure to the Congress.
Further, because of the complexity of our vast Federal structure,
often a citizen simply does not know the appropriate office to
petition.
For these, or similar reasons, it is logical and proper that the
petitioner seek the assistance of his Congressman for an early and
equitable resolution of his problem.
Representations.--This Committee is of the opinion that a Member of
the House of Representatives, either on his own initiative or at the
request of a petitioner, may properly communicate with an Executive or
Independent Agency on any matter to:
--Lrequest information or a status report;
--Lurge prompt consideration;
--Larrange for interviews or appointments;
--Lexpress judgment;
--Lcall for reconsideration of an administrative response which he
believes is not supported by established law, Federal regulation or
legislative intent;
--Lperform any other service of a similar nature in this area
compatible with the criteria hereinafter expressed in this Advisory
Opinion.
Principles To Be Observed.--The overall public interest, naturally,
is primary to any individual matter and should be so considered. There
are also other self-evident standards of official conduct which Members
should uphold with regard to these communications. The Committee
believes the following to be basic:
1. A Member's responsibility in this area is to all his
constituents equally and should be pursued with diligence
irrespective of political or other considerations.
2. Direct or implied suggestion of either favoritism or
reprisal in advance of, or subsequent to, action taken by the
agency contacted is unwarranted abuse of the representative role.
3. A Member should make every effort to assure that
representations made in his name by any staff employee conform to
his instruction.
Clear Limitations.--Attention is invited to United States Code,
Title 18, Sec. 203(a) which states in part: ``Whoever . . . directly or
indirectly receives or agrees to receive, or asks, demands, solicits,
or seeks, any compensation for any services rendered or to be rendered
either by himself or another
(1) at a time when he is a Member of Congress . . .; or
(2) at a time when he is an officer or employee of the United
States in the . . . legislative . . . branch of the government . .
.
in relation to any proceeding, application, request for a ruling or
other determination, contract, claim, controversy, charge,
accusation, arrest, or other particular matter in which the United
States is a party or has a direct and substantial interest, before
any department, agency, court-martial, officer, or any civil,
military, or naval commission . . .
Shall be fined not more than $10,000 or imprisoned for not more
than two years or both; and shall be incapable of holding any office of
honor, trust, or profit under the United States.''
The Committee emphasizes that it is not herein interpreting this
statute but notes that the law does refer to any compensation, directly
or indirectly, for services by himself or another. In this connec
[[Page 1759]]
tion, the Committee suggests the need for caution to prevent the
accrual to a Member of any compensation for any such services which may
be performed by a law firm in which the Member retains a residual
interest.
It should be noted that the above statute applies to officers and
employees of the House of Representatives as well as to Members.
ADVISORY OPINION NO. 2
(Issued July 11, 1973)
On the Subject of a Member's Clerk Hire
Reason for issuance.--A number of requests have come to the
Committee for advice on specific situations which, to some degree,
involve consideration of whether moneys appropriated for Members' clerk
hire are being properly utilized.
A summary of the responses to these requests forms the basis for
this Advisory Opinion which, it is hoped, will provide some guidelines
and assistance to all Members.
Background.--The Committee requested the Congressional Research
Service to examine in depth the full scope of the laws and the
legislative history surrounding Members' clerk hire. The search
produced little in the way of specific parameters in either case law or
congressional intent, concluding that ``. . . no definitive definition
was found . . .''. It is out of this absence of other guidance the
Committee feels constrained to express its views.
Clerk hire allowance for Representatives was initiated in 1893 (27
Stat. 757). The law providing it spoke of providing clerical assistance
to a Representative ``in the discharge of his official and
representative duties . . .''. The same phraseology is used today in
each Legislative Appropriations bill and by the Clerk of the House in
his testimony before the Subcommittee on Legislative Appropriations. An
exact definition of ``official and representative duties'' was not
found in the extensive materials researched. Remarks concerning various
bills, however, usually refer to ``clerical service'' or terms of
similar import, thus implying a consistent perception of the term as
payment for personal services.
Summary Opinion.--This Committee is of the opinion that the funds
appropriated for Members' clerk hire should result only in payment for
personal services of individuals, in accordance with the law relating
to the employment of relatives, employed on a regular basis, in places
as provided by law, for the purpose of performing the duties a Member
requires in carrying out his representational functions.
The Committee emphasizes that this opinion in no way seeks to
encourage the establishment of uniform job descriptions or imposition
of any rigid work standards on a Member's clerical staff. It does
suggest, however, that it is improper to levy, as a condition of
employment, any responsibility on any clerk to incur personal
expenditures for the primary benefit of the Member or of the Member's
congressional office operations, such as subscriptions to publications,
or purchase of services, goods or products intended for other than the
clerk's own personal use.
The opinion clearly would prohibit any Member from retaining any
person from his clerk hire allowance under either an express or tacit
agreement that the sal
[[Page 1760]]
ary to be paid him is in lieu of any present or future indebtedness of
the Member, any portion of which may be allocable to goods, products,
printing costs, campaign obligations, or any other nonrepresentational
service.
In a related regard, the Committee feels a statement it made
earlier, in responding to a complaint, may be of interest. It states:
``As to the allegation regarding campaign activity by an individual on
the clerk hire rolls of the House, it should be noted that, due to the
irregular time frames in which the Congress operates, it is unrealistic
to impose conventional work hours and rules on congressional employees.
At some times, these employees may work more than double the usual
workweek--at others, some less. Thus employees are expected to fulfill
the clerical work the Member requires during the hours he requires and
generally are free at other periods. If, during the periods he is free,
he voluntarily engages in campaign activity, there is no bar to this.
There will, of course, be differing views as to whether the spirit of
this principle is violated, but this Committee expects Members of the
House to abide by the general proposition.''
ADVISORY OPINION NO. 3
(Issued June 26, 1974)
On the Subject of Foreign Travel by Members and Employees of the House
of Representatives at the Expense of Foreign Governments
Reason for Issuance.--The Committee has received a number of
requests from Members and employees of the House for guidance and
advice regarding acceptance of trips to foreign countries, the expenses
of which are borne by the host country or some agent or instrumentality
of it.
The Committee is advised that similar inquiries recently have been
put to the Department of State with respect to other Federal employees.
In order to provide widest possible dissemination to views
expressed in response to the requests, and to coordinate with
statements likely to be forthcoming from other areas of the Federal
government in this regard, this general advisory opinion is
respectfully offered.
Background.--The United States Constitution, at Article I, Section
9, Clause 8, holds that:
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign
State.
This provision, described as stemming from a ``just jealousy of
foreign influence of every sort,'' is extremely broad as to whom it
covers, as well as to the ``presents'' or ``emoluments'' it prohibits--
speaking of the latter as of any kind whatever. (emphasis provided)
It is narrow only in the sense that the framers, aware that social
or diplomatic protocols could compel some less than absolute observance
of a prohibition on the receipt or exchange of gifts, provided for
specific exceptions with ``the consent of the Congress.''
Congress dealt from time to time with these exceptions through
public and private bills addressed to specific situations, and dealt
generally, commencing in 1881,
[[Page 1761]]
with the overall question of management of foreign gifts.
In 1966 Congress passed the latest and the existing Public Law 89-
673, ``an Act to grant the consent of Congress to the acceptance of
certain gifts and decorations from foreign governments.'' That law is
presently codified at Title 5, United States Code, Section 7342, a copy
of which is attached.
The law is quite explicit in virtually all particulars, save
whether the expense of a trip paid for by a foreign government is a ``.
. . present or thing, other than a decoration, tendered by or received
from a foreign government; . . .''
It is on this point that this Opinion lies.
Basis of Authority for Opinion.--Since this matter impinges equally
on all Federal employees, the Committee sought advice from the
Comptroller General as legal adviser to the Congress, and from the
Secretary of State as the implementing authority over 5 U.S.C. 7342.
Copies of their official responses are attached to this Opinion.
Summary Opinion.--It is the opinion of this Committee, on its own
initiative and with the advice of the Comptroller General and the
Assistant Secretary of State, that acceptance of travel or living
expenses in specie or in kind by a Member or employee of the House of
Representatives from any foreign government, official agent or
representative thereof is not consented to in 5 U.S.C. 7342, and is,
therefore, prohibited. This prohibition applies also to the family and
household of Members and employees of the House of Representatives.
Sec. L 7342. Receipt and disposition of foreign gifts and
decorations
(a) For the purpose of this section--
(1) ``employee'' means--
(A) an employee as defined by section 2105 of this title;
(B) an individual employed by, or occupying an office or
position in, the government of a territory or possession of the
United States or of the District of Columbia;
(C) a member of a uniformed service;
(D) the President;
(E) a Member of Congress as defined by section 2106 of this
title; and
(F) a member of the family and household of an individual
described in subparagraphs (A)-(E) of this paragraph;
(2) ``foreign government'' means a foreign government and an
official agent, or representative thereof;
(3) ``gift'' means a present or thing, other than a decoration,
tendered by or received from a foreign government; and
(4) ``decoration'' means an order, device, medal, badge,
insignia, or emblem tendered by or received from a foreign
government.
(b) An employee may not request or otherwise encourage the tender
of a gift or decoration.
(c) Congress consents to--
(1) the accepting and retaining by an employee of a gift of
minimal value tendered or received as a souvenir or mark of
courtesy; and
(2) the accepting by an employee of a gift of more than minimal
value when it appears that to refuse the gift would be likely to
cause offense or embarrassment or otherwise adversely affect the
foreign relations of the United States.
However, a gift of more than minimal value is deemed to have been
accepted on
[[Page 1762]]
behalf of the United States and shall be deposited by the donee for
use and disposal as the property of the United States under
regulations prescribed under this section.
(d) Congress consents to the accepting, retaining, and wearing by
an employee of a decoration tendered in recognition of active field
service in time of combat operations or awarded for other outstanding
or unusually meritorious performance, subject to the approval of the
agency, office or other entity in which the employee is employed and
the concurrence of the Secretary of State. Without this approval and
concurrence, the decoration shall be deposited by the donee for use and
disposal as the property of the United States under regulations
prescribed under this section.
(e) The President may prescribe regulations to carry out the
purpose of this section. Added Pub. L. 90-83 Sec. 1(45)(C), Sept. 11,
1967, 81 Stat. 208.
----
Department of State,
Washington, D.C., May 9, 1974.
Hon. melvin Price,
Chairman, Committee on Standards of Official Conduct, House of
Representatives.
Dear Mr. Chairman: I am replying to your letter of April 17 to Mr.
Hampton Davis, of the Office of the Chief of Protocol, requesting
comment on Congressman Kemp's suggestion that your Committee issue a
briefing paper on the propriety of acceptance by Congressional Members
and staff of trips offered them at the expense of foreign governments.
Various Federal agencies have put similar questions to the
Department of State on a number of occasions in behalf of their
employees who have received but not yet acted on offers of such trips.
It has been the Department's consistent position that the offer of an
expenses-paid trip is an offer of a gift and that, therefore, if
tendered by a foreign government or any representative thereof to a
Federal employee, the Foreign Gifts and Decorations Act of 1966 would
require its refusal. A trip cannot qualify under the special provision
permitting acceptance of a gift of more than minimal value on the
ground that to refuse it would appear likely to ``cause offense or
embarrassment or otherwise adversely affect the foreign relations of
the United States''. This follows from the requirement that the donee,
being deemed to have accepted such a gift on behalf of the United
States, deposit it for use and disposal as property of the United
States in accordance with the implementing regulations, since the
recipient of a trip could not fulfill that requirement.
Precisely because of the impossibility of surrendering the gift of
a trip once it has been accepted and taken, we believe it would be
highly advisable for your Committee to issue the briefing paper on the
subject which Congressman Kemp has suggested. In this connection the
Committee may be interested to know that the Department is planning a
new informational program designed to improve understanding and
compliance with the Foreign Gifts and Decorations Act and the
implementing regulations. The program will be aimed not only at those
within the Federal establishment who might become donees or who may
have responsibility for briefing potential donees, but also at the
foreign governments that appear to be less than fully aware of the
stringent legal restrictions
[[Page 1763]]
that we operate under in this area. We shall be happy to see that the
Committee is included in the distribution of the material being
developed.
I hope that we have been helpful in this matter and that you will
feel free to call upon us at any time you think we can be of
assistance.
Sincerely yours,
Linwood Holton,
Assistant Secretary for
Congressional Relations.
Comptroller General
of The United States,
Washington, D.C., May 9, 1974.
B-180472.
Hon. Melvin Price,
Chairman, Committee on Standards of Official Conduct, House of
Representatives.
Dear Mr. Chairman: Your letter of April 17, 1974, with attachments,
requests our comments on the advisability of issuing a briefing paper
on the legal ramifications of the acceptance by Members of Congress, or
staff, of trips abroad that are paid for by foreign governments.
We are not aware of any decision by any forum as to the legality of
such trips. The question arises because of the prohibition contained in
article I, section 9, clause 8, of the United States Constitution,
which reads as follows:
``No Title of Nobility shall be granted by the United States: And
no Person holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present, Emolument,
Office, or Title of any kind whatever, from any King, Prince, or
foreign State.''
In connection with this provision, we have viewed the term
``present'' as ``synonymous with the term `gift','' denoting
``something voluntarily given, free from legal compulsion or
obligation.'' 34 Comp. Gen. 331, 334 (1955); 37 Comp. Gen. 138, 140
(1957). ``Emolument'' has been defined as profit, gain, or compensation
received for services rendered. 49 Comp. Gen. 819, 820 (1970); B-
180472, March 4, 1974. Accordingly, and in view of the emphatic
language of the Constitution (i.e., present or emolument ``of any kind
whatever''), we see no basis whereby trips paid for by foreign
governments may be accepted by Members of Congress or members of their
staffs without the consent of the Congress. If payment of the cost of a
trip in a particular case be considered as an emolument for services to
be rendered acceptance thereof would be categorically prohibited by the
above-cited constitutional provision unless consented to by the
Congress.
If on the other hand the payment of travel costs in a particular
circumstance constitutes a gift, by enactment of section 7342 of title
5, United States Code, entitled ``Receipt and disposition of foreign
gifts and decorations,'' the Congress has given its consent to (quoting
the Code provision in part)--
``(1) the accepting and retaining by an employee of a gift of
minimal value tendered or received as a souvenir or mark of
courtesy; and
``(2) the accepting by an employee of a gift of more than
minimal value when it appears that to refuse the gift would be
]ikely to cause offense or embarrassment or otherwise adversely
affect the foreign relations of the United States.
``However, a gift of more than minimal value is deemed to have
been accepted on behalf of the United States and shall be deposited
by the donee for
[[Page 1764]]
use and disposal as the property of the United States under
regulations prescribed under this section.''
The term ``employee'' is defined in section 7342 as including
members of Congress.
By Executive Order 11320, the President delegated to the Secretary
of State the authority to issue regulations implementing this statute.
These regulations are contained in part 3 of title 22, Code of Federal
Regulations (CFR). A ``gift of minimal value'' is defined as ``any
present or other thing, other than a decoration, which has a retail
value not in excess of $50 in the United States.'' 22 CFR Sec. 3.3(e).
The statute and regulations do not specifically cover trips, and the
legislative history of the Foreign Gifts and Decorations Act of 1966,
of which section 7342 is a part, indicates that the statute
contemplated gifts of tangible items. In any event, the intent seems
clear that, although a gift of more than minimal value may be
``accepted'' in the limited situations indicated, the value of such
gift is not to inure to the benefit of the individual recipient.
Accordingly, it is our view that section 7342 would not permit the
acceptance of gifts of trips abroad by Members of Congress or members
of their staffs that are paid for by foreign governments.
We see no objection to the issuance of a briefing paper, setting
forth the above views of our Office, in order to provide guidance to
Members of the Congress regarding this matter.
Sincerely yours,
R. F. Keller,
Acting Comptroller General
of the United States.
ADVISORY OPINION NO. 4
(Issued May 14, 1975)
On the Propriety of Accepting Certain Non-paid Transportation
Reason for Issuance.--The Committee has been requested in writing
to express an opinion on the propriety of Members and staff of the U.S.
House of Representatives accepting non-paid transportation provided
under a number of circumstances. In order that all may be on notice,
the response to that request is made in this Committee Advisory
Opinion.
Background.--It is necessary and desirable that Members and
employees of the U.S. House of Representatives, being public officials,
maintain maximum contact with the public at large to provide
information on the work of the House and to gain citizen input into the
legislative process. To accomplish this, considerable travel is
required. Under some circumstances, such travel may be appropriately
provided by other than commercial means. Conversely, in some
circumstances non-paid transportation offers should be declined. It is
the intent of this Advisory Opinion to address both situations.
The distinction turns on the purpose of the transportation. At
times, it will be clear that there is a single identifiable purpose. At
other times there may be more than one purpose involved. The Committee
stresses that the opinions hereafter stated deal with the principal
purpose for taking the trip, such purpose to be fairly determined by
the person involved, before acceptance of any nonpaid transportation.
Non-Paid Transportation Offers To Be Declined.--If the principal
purpose of the trip is political campaign activity, and the host
carrier is one who would be prohibited by law from making a campaign
contribution, such non-paid transportation would amount to a political
contribution in kind, and should not be accepted.
[[Page 1765]]
If the trip is principally for noncampaign purposes, and the person
involved were to request the host carrier to schedule transportation
expressly for the convenience of the congressional passenger, such
request could be interpreted as abuse of one's public position and
should be avoided.
Non-Paid Transportation Offers Which may be Accepted.--If the
purpose of the trip is principally representational or even personal,
and if the host carrier's purpose in scheduling the transportation is
solely for the general benefit of the host, and the transportation is
furnished on a space-available basis with no additional costs incurred
in providing the accommodation, it would not be improper to accept such
transportation.
If the purpose of the transportation is to enable the congressional
passenger, in his role as a public official, to be present at an event
for the general benefit of an audience, the accommodation should be
construed as accruing to the benefit of the audience--not the
passenger--and it would not be improper to accept such transportation.
The above principle can be similarly applied to situations in which
a congressional passenger is transported in connection with the receipt
of an honorarium. Under such circumstances, the transportation may be
accepted in lieu of monetary reimbursement for travel to which the
passenger would otherwise be entitled.
Congressional officials, like other public officials and private
persons, are on occasion invited as guests on scheduled airlines'
inaugural flights. Specific authority to provide such non-paid
transportation is contained in 14 CFR 223.8 and 399.34. Assuming that
the conditions of these sections are strictly met, the Committee finds
that there would be nothing improper in the acceptance of such
inaugural flights.