[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 25. Ethics; Committee on Standards of Official Conduct]
[From the U.S. Government Publishing Office, www.gpo.gov]
[[Page 493]]
CHAPTER 25 - ETHICS; COMMITTEE ON STANDARDS OF OFFICIAL CONDUCT
HOUSE PRACTICE
A. Introductory
Sec. 1. In General
Sec. 2. Committee on Standards of Official Conduct
Sec. 3. -- Membership; Eligibility for Committee Service;
Disqualification
Sec. 4. -- Publications; Advisory Opinions
Sec. 5. Initiating an Investigation; Complaints
Sec. 6. Persons Subject to Disciplinary Procedures
B. Basis for Imposing Sanctions
Sec. 7. In General; The Code of Official Conduct
Sec. 8. Code of Ethics for Government Service
Sec. 9. Violations of Statutes
Sec. 10. Misuse of Hiring Allowance; False Claims
Sec. 11. Discrimination in Employment
Sec. 12. Campaign Fund Irregularities
Sec. 13. Solicitation of Contributions From Government Employees
Sec. 14. Limitations on Earned Income; Honoraria
Sec. 15. Acceptance of Gifts
Sec. 16. Financial Disclosure
Sec. 17. Professional Practice Restrictions
Sec. 18. Acts Committed in Prior Congress or Before Becoming a Member
C. Nature and Forms of Disciplinary Measures
Sec. 19. In General
Sec. 20. Expulsion
Sec. 21. -- Procedure; Resolutions of Expulsion
Sec. 22. Censure; Reprimand
Sec. 23. -- Grounds; Particular Conduct
Sec. 24. -- Censure Resolutions
[[Page 494]]
Sec. 25. Fines; Restitution of Funds
Sec. 26. Deprivation of Status; Caucus Rules
Sec. 27. Letter of Reproval
Research References
U.S. Const. art. I, Sec. 5, cl. 2; Sec. 6, cl. 1
2 Hinds Sec. Sec. 1236-1289
6 Cannon Sec. Sec. 236-238
Deschler Ch 12 Sec. Sec. 2-18
Manual Sec. Sec. 62, 738, 759, 806, 853, 1095-1103
House Ethics Manual, 102d Cong.; Gifts and Travel, 106th
Cong., and Campaign Activity, 107th Cong., Committee on
Standards of Official Conduct
A. Introductory
Sec. 1 . In General
Authority; Definitions and Distinctions
The authority of the House to discipline its Members flows from
the Constitution. It provides that each House may ``punish its Members
for disorderly Behaviour, and, with the concurrence of two thirds,
expel a Member.'' U.S. Const. art. I, Sec. 5, cl. 2.
Among the sanctions that the House may impose under this
provision, the rules of the Committee on Standards of Official Conduct
outline the following:
Expulsion from the House.
Censure.
Reprimand.
Fine.
Denial or limitation of any right, power, privilege, or
immunity of the Member if not in violation of the Constitution.
Any other sanction determined by the committee to be
appropriate.
Rule 25, Committee on Standards of Official Conduct, 107th Cong; see
Sec. Sec. 19-27, infra.
These sanctions are not mutually exclusive. In a given case, a
Member may be censured, fined, and deprived of his seniority. Deschler
Ch 12 Sec. 12.1. A Member also may be reprimanded and ordered to
reimburse the costs of the committee's investigation. Manual Sec. 63.
Imprisonment of a Member is a form of punishment that is
theoretically within the power of the House to impose, but such action
has never been
[[Page 495]]
taken by the House. Deschler Ch 12 Sec. 12. The disciplinary measures
referred to herein are separate and distinct from the sanctions of
fine or imprisonment that may be available under a criminal statute at
the State or Federal level. See Sec. 9, infra.
Exclusion Distinguished
The power of exclusion is derived from the right of each House to
determine the qualifications of its Members, whereas the power of
expulsion stems from its authority to discipline Members for
misconduct. This distinction has not always been recognized. In 1870 a
Member was excluded from the 41st Congress on the ground that he had
sold appointments to the Military Academy. 1 Hinds Sec. 464. In 1967,
after an investigating committee recommended that a Member be fined
and censured for improperly maintaining his wife on the clerk-hire
payroll and for improper use of public funds for private purposes, the
House voted to impose a stronger penalty--to exclude him by denying
him his seat. Deschler Ch 12 Sec. Sec. 14.1, 16.1. However, the
Supreme Court determined such exclusion was not a sanction to be
invoked in cases involving the misconduct of a Member. It is available
only for failure to meet the constitutional qualifications of Members
as to age, citizenship, and inhabitancy. Powell v. McCormack, 395 U.S.
486 (1969).
Sec. 2 . Committee on Standards of Official Conduct
Generally
Before the 90th Congress, select temporary committees were created
to consider allegations of improper conduct against a Member and to
recommend such disciplinary measures as might be appropriate. Deschler
Ch 12 Sec. 2. In the 90th Congress, the Committee on Standards of
Official Conduct was established as a standing committee of the House.
90-1, H. Res. 418, Apr. 13, 1967, p 9425. Under rule XIII clause
5(a)(5), the committee may report as privileged resolutions
recommending action by the House with respect to the official conduct
of any Member, officer, or employee of the House. Manual Sec. 853.
Legislative Jurisdiction
The jurisdiction of the Committee on Standards of Official
Conduct, as set forth in rule X clause 1(p), consists of measures
relating to the Code of Official Conduct. Manual Sec. 737. Measures
proposing to amend the Code are not privileged for immediate
consideration when reported by that committee but may be considered in
the House pursuant to a special order from the Committee on Rules. See
Manual Sec. 853.
[[Page 496]]
Investigative Jurisdiction; Recommendations and Reports
Pursuant to rule XI clause 3, the Committee on Standards of
Official Conduct is authorized to conduct investigations, hold
hearings, and report any findings and recommendations to the House.
Manual Sec. 806. This committee has been given similar
responsibilities under House resolutions authorizing specific
investigations. Where the House has directed the committee to conduct
such a specific investigation, it has, on occasion, authorized the
committee to take staff depositions, to serve subpoenas within or
without the United States, and to participate by special counsel in
relevant judicial proceedings. See, e.g., 95-1, H. Res. 252, Feb. 9,
1977, pp 3966, 3975; 96-2, H. Res. 608, Mar. 27, 1980, p 6995. The
committee also has been authorized to investigate, with expanded
subpoena authority, persons other than Members, officers, and
employees. 94-2, H. Res. 1054, Mar. 3, 1976, p 5165-68.
By resolutions considered as questions of the privileges of the
House, the committee has been directed:
To investigate illegal solicitation of political contributions
in the House Office Buildings by unnamed sitting Members.
To review GAO audits of the operations of the ``bank'' in the
Office of the Sergeant-at-Arms.
To disclose the names and pertinent account information of
Members found to have abused the privileges of the ``House
bank.''
To investigate violations of confidentiality by staff engaged
in the investigation of the operation and management of the
Office of the Postmaster.
Manual Sec. 703.
Extensive Revision of Ethics Process
In the 105th Congress the House adopted a resolution sponsored by
the chairman and ranking minority member of a bipartisan leadership
task force on reform of the ethics process. The resolution included
provisions amending the rules of the House as follows:
Establishment of a ``pool'' of non-committee Members who may
be assigned to serve on investigative subcommittees, and
exclusion of service on such subcommittee from the limitation
on subcommittee service. Rule X clause 5.
Requirement that a complaint placed on the committee agenda
before expiration of the time limit set forth in the rules of
the committee be referred to an investigative subcommittee only
by an affirmative vote of the members of the committee. Rule XI
clause 3.
Change in the duration of service on the committee. Rule X
clause 5.
[[Page 497]]
Requirement that each meeting be held in executive session
unless opened by an affirmative vote of a majority of the
members, and requirement that each adjudicatory subcommittee
hearing or full-committee sanction hearing be open unless
closed by an affirmative vote of a majority of its members.
Rule XI clause 3(c).
Requirement of confidentiality oath by a Member, officer, or
employee having access to committee information. Rule XI clause
3(d).
Exception for committee votes taken in executive session from
requirement that committees disclose record votes. Rule XIII
clause 3(b).
Permission for a non-Member to file information offered as a
complaint only if a Member certifies the information is
submitted in good faith and warrants committee consideration.
Rule XI clause 3(b)(2)(B).
Authority for the chairman and ranking minority member jointly
to appoint members from the ``pool'' to serve on an
investigative subcommittee. Rule X clause 5.
Authority for the chairman and ranking minority member of the
committee jointly to gather preliminary additional information
with regard to a complaint or information offered as a
complaint. Rule XI clause 3(b)(1).
Authority for a subcommittee to authorize and issue a subpoena
only by affirmative vote of a majority of its members. Rule XI
clause 2(m)(2).
Authority for the committee to refer substantial evidence of a
violation of law to Federal or State authorities either with
approval of the House or by an affirmative vote of two-thirds
of the members of the committee. Rule XI clause 3(a)(3).
Authority for the committee to take appropriate action in the
case of a frivolous complaint. Rule XI clause 3(e).
The resolution also included provisions requiring the committee to
adopt the following committee rules (which were codified in rule XI
clause 3 in the 108th Congress):
Guaranteeing the ranking minority member the right to place an
item on the agenda.
Setting specified standards for staff, providing for
appointment of staff, permitting the retention of outside
counsel or temporary staff, and permitting both the chairman
and the ranking minority member one additional staff member.
Permitting only the chairman or ranking minority member to
make public statements regarding matters before the committee,
unless otherwise determined by a vote of the committee.
Providing the chairman and ranking minority member 14 calendar
days or five legislative days (whichever occurs first) to
determine whether information offered as a complaint
constitutes a complaint.
[[Page 498]]
Granting the chairman and ranking minority member, unless
otherwise determined by an affirmative vote of the majority of
committee members, 45 calendar days or five legislative days
(whichever occurs later) after the date they determine the
information filed constitutes a complaint to: (1) recommend
disposition of the complaint; (2) establish an investigative
subcommittee; or (3) request an extension.
Requiring the chairman and ranking minority member to
establish an investigative subcommittee to consider a complaint
not disposed of by the expiration of the time limit.
Providing for disposal of information not constituting a
proper complaint.
Setting parameters for the composition of investigative and
adjudicatory subcommittees.
Establishing a standard of proof for the adoption of a
statement of alleged violation.
Authorizing expansion of the scope of an investigation by an
investigative subcommittee upon an affirmative vote of a
majority of the members of the full committee.
Authorizing an investigative subcommittee to amend its
statement of alleged violation any time before it is
transmitted to the committee and granting 30 calendar days for
a respondent to file an answer to the amended statement of
alleged violation.
Establishing procedures to protect the due process rights of
respondents.
Requiring the committee to transmit to the House upon an
affirmative vote of a majority of its members an investigative
subcommittee report that it did not adopt a statement of
alleged violation.
Detailing a mode of proceeding upon an approved waiver of an
adjudicatory hearing, including committee reporting
requirements and opportunity for respondent views.
Clarifying that, when the committee authorizes an
investigation on its own initiative, the chairman and ranking
minority member shall establish an investigative subcommittee.
105-1, H. Res. 168, Sept. 18, 1997, p ____; Manual Sec. 806.
Sec. 3 . -- Membership; Eligibility for Committee Service;
Disqualification
The Committee on Standards of Official Conduct, unlike other
standing committees of the House (where the majority party has a
preponderance of the elected membership), is composed of 10 members in
equal numbers from the majority and minority parties. Rule X clause
5(a)(3). Service on the committee also is limited to no more than
three Congresses in any 10-year period. However, a member of the
committee may serve during a fourth Congress as either the chairman or
the ranking minority member of the committee. Manual Sec. 759. At the
beginning of each Congress, the Speaker and the Minority Leader each
name 10 Members from their respec
[[Page 499]]
tive parties who are not members of the committee to be available to
serve on investigative subcommittees during that Congress. Rule X
clause 5(a)(4).
Rule XI clause 3(b)(4) provides that a member of the committee
shall be ineligible to participate in a committee proceeding relating
to his or her own conduct. Under this rule, where it was contended
that four members of the committee were ineligible to adjudicate a
complaint because of their personal involvement in the relevant
conduct, the Speaker named four other Members to act as members of the
committee in all proceedings on the complaint in the same political-
party ratio represented by the party affiliation of the four
ineligible members. Manual Sec. 806.
Rule XI clause 3(b)(5) permits a member of the committee to
disqualify himself from participation in any committee investigation
in which he certifies that he could not render an impartial decision
and authorizes the Speaker to appoint a replacement for that
investigation. Under this rule, where a member of the committee
submits an affidavit of disqualification in a disciplinary
investigation of another Member, or where a member of the committee is
himself the subject of an ethics inquiry and has notified the Speaker
of his ineligibility, the Speaker may appoint another Member to serve
on the committee during the investigation. Manual Sec. 806.
Sec. 4 . -- Publications; Advisory Opinions
Under rule XI clause 3(a)(4), the Committee on Standards of
Official Conduct is authorized to issue and publish advisory opinions
(also known as ``pink sheets'') with respect to the general propriety
of any current or proposed conduct. The committee's advisory opinions
are incorporated in the House Ethics Manual. The House Ethics Manual
also includes advisory opinions issued by the former Select Committee
on Ethics, which was established during the 95th Congress and was the
precursor of the present standing committee. More recent advisory
opinions may be found on the committee's website and include the
following:
Salary Levels at which the Outside Earned Income Limitation,
Financial Disclosure Requirement, and Post-Employment
Restrictions Apply for Calendar Year 2003--January 16, 2003.
Post-Employment and Related Restrictions for Staff--November
25, 2002.
Post-Employment and Related Restrictions for Members and
Officers--November 25, 2002.
Gift Rule Provisions on Meals, Entertainment and Recreational
Activities from Lobbyists--November 14, 2002.
Applicability of the Financial Disclosure Reporting
Requirement, the Outside Employment and Earned Income
Restrictions, and the Post-Employment Restrictions to House
Employees--October 2, 2002.
[[Page 500]]
Member Use of Campaign Funds to Pay Food and Beverage Expenses
at Events Sponsored by Their Office and Other Official House
Events--May 8, 2002.
Member Office Activities in Areas Added by Redistricting--
February 15, 2002.
Olympics Tickets Under the Gift Rule--December 20, 2001.
Classified Information Oath--October 12, 2001.
Prohibition Against Private Subsidy of Conferences, Meetings
and Other Events Sponsored by a House Office--September 28,
2001.
Rules and Standards of Conduct Applicable to Committee
Consultants--April 12, 2000.
``Lump Sum'' Payments to House Employees--October 15, 1999.
Prohibition Against Linking Official Actions to Partisan or
Political Considerations, or Personal Gain--May 11, 1999.
Employment Recommendations--October 1, 1998.
Answers to the ``Top 20 Questions''--March 4, 1998.
Outside Earned Income Restrictions on Members and Senior
Staff--February 23, 1998.
Rules Governing (1) Solicitation by Members, Officers and
Employees in General, and (2) Political Fundraising Activity in
House Offices--April 25, 1997.
Classified Information Oath--July 12, 1995.
Revised Solicitation Guidelines--April 4, 1995.
In addition to the House Ethics Manual, the committee published
the booklet Gifts and Travel in the 106th Congress and the booklet
Campaign Activity in the 107th Congress. Advisory opinions issued by
the committee also may be found in these publications and in the
appendix to Chapter 12 of Deschler's Precedents. Additional
information also is available electronically from the committee's
website.
In accordance with section 803(i) of the Ethics Reform Act of
1989, the committee has established an Office of Advice and Education.
The primary responsibility of the office is to provide information and
guidance to Members, officers, and employees regarding all standards
of conduct that apply to them.
Sec. 5 . Initiating an Investigation; Complaints
Generally
In addition to an investigation directed by House resolution,
called up as a question of the privileges of the House, an
investigation of particular conduct may be initiated pursuant to
adoption of a resolution reported from the Committee on Rules. See,
e.g., 96-2, H. Res. 608, Mar. 27, 1980, p 6995-98. A resolution
directing the committee to investigate a possible un
[[Page 501]]
authorized disclosure of classified information by the Speaker in
violation of House rules was introduced through the hopper and
referred to the Committee on Rules. 100-2, Sept. 30, 1988, p 27329.
Under rule XI clause 3(b)(1)(A), an investigation of particular
conduct also may be initiated by the Committee on Standards of
Official Conduct, if approved by a majority vote of the members of
that committee. An investigation also may be initiated pursuant to
information offered as a complaint filed with the committee by a
Member. A complaint may be filed by a non-Member if the complaint is
accompanied by a certification from a Member that the information is
submitted in good faith and warrants committee consideration. Rule XI
clause 3(b)(2); Manual Sec. 806.
Under rule XI clause 3(b)(1), the chairman and ranking minority
member of the committee jointly may gather additional information
concerning alleged conduct that is the basis of a complaint until they
have established an investigative subcommittee or either of them has
placed on the agenda of the committee the issue of whether to
establish such subcommittee. Manual Sec. 806.
Complaint Requirements; Unfounded Charges
Information offered as a complaint filed with the committee must
comply with the requirements of rule XI clause 3(b)(2), including the
requirement that it be in writing and under oath. Manual Sec. 806.
Each complaint received by the committee is examined to determine
whether it complies with that rule. Complaints that are not in
compliance are returned. Those that comply with the rule are
considered by the committee for appropriate disposition.
Under rule XI clause 3(e)(1), a complaint determined by the
Committee on Standards of Official Conduct to be frivolous may give
rise to action by that committee. A Member who presented false charges
against another Member has himself become the subject of a select
committee investigation and report. In 1908 the House adopted a
resolution approving a select committee report finding a Member in
contempt and in violation of his obligations as a Member where he had
presented false charges of corruption against another Member. 6 Cannon
Sec. 400.
Disclosure
Rule XI clause 3(b)(6) requires a vote of the Committee on
Standards of Official Conduct to authorize the public disclosure of
the content of a complaint or the fact of its filing.
[[Page 502]]
Debate
References in floor debate to the content of a complaint or the
fact of its filing are governed by the rules of decorum in debate
under rule XVII clause 1. Under this stricture a Member should refrain
from references in debate to the official conduct of a Member where
such conduct is not the subject then pending before the House by way
of either a report of the Committee on Standards of Official Conduct
or another question of the privileges of the House. This stricture
also precludes a Member from reciting news articles discussing a
Member's conduct, reciting the content of a previously tabled
resolution raising a question of the privileges of the House, or even
referring to a Member's conduct by mere insinuation.
The fact that a complaint has been filed does not open up its
allegations to debate on the floor. Notice of an intention to offer a
resolution as a question of the privileges of the House under rule IX
does not render a resolution ``pending'' and thereby permit references
to the conduct of a Member proposed to be addressed therein. Manual
Sec. 361.
Sec. 6 . Persons Subject to Disciplinary Procedures
The investigative authority that is given under rule XI clause
3(a)(1) to the Committee on Standards of Official Conduct over alleged
violations extends to ``Members, Delegates, the Resident Commissioner,
officers, and employees of the House.'' Manual Sec. 806. The Speaker
has been subject to the investigative authority of this committee.
101-1, Statement of the Committee on Standards of Official Conduct In
re Wright, Apr. 17, 1989; H. Res. 31, H. Rept. 105-1, In re Gingrich,
Jan. 21, 1997, p 459. A Delegate has been subject to censure for
misconduct. 2 Hinds Sec. 1305. With respect to violations by House
officers or employees, the rules of the committee authorize it to
recommend to the House dismissal from employment, fine, or any other
sanction determined by the committee to be appropriate. Rule 25, Rules
of the Committee on Standards of Official Conduct, 107th Cong.
On one occasion, the House, by adopting a resolution presented as
a question of privilege (dealing with the unauthorized disclosure of a
House report), authorized the Committee on Standards of Official
Conduct to investigate persons not associated with the House. 94-2, H.
Res. 1042, Feb. 19, 1976, p 3914. The House considered it necessary to
enlarge the subpoena authority of the committee to carry out this
investigation. 94-2, H. Res. 1054, Mar. 3, 1976, p 5165. Private
citizens have been censured or reprimanded by the Speaker at the bar
of the House for attempting to bribe a Member or for assaulting a
Member. 2 Hinds Sec. Sec. 1606, 1616-1619, 1625; 6 Cannon Sec. 333.
[[Page 503]]
Under rule XI clause 3(a)(3), the committee may report to the
appropriate Federal or State authorities, either with the approval of
the House or by an affirmative vote of two-thirds of the members of
the committee, any substantial evidence of a violation of a law by a
Member, officer, or employee of the House that is applicable to the
performance of his duties or the discharge of his responsibilities
that may have been disclosed in a committee investigation.
B. Basis for Imposing Sanctions
Sec. 7 . In General; The Code of Official Conduct
Generally
Before the 90th Congress, there was no formal code of conduct for
Representatives. However, in 1968 the rules were amended to establish
a Code of Official Conduct for Members and employees of the House. 90-
1, H. Res. 1049, Apr. 3, 1968, p 8803; rule XXIII. The Code, along
with rules XXIV through XXV, contain provisions governing the receipt
of compensation, gifts, and honoraria. It also addresses the use of
campaign funds, proscribes discrimination in employment, and bars
certain ``non-House'' uses of House stationery. Manual Sec. Sec. 1095-
1102.
Conduct Reflecting Discredit on the House
Under the Code of Official Conduct, disciplinary measures may be
invoked against a Member, officer, or employee on the ground that he
has violated the requirement in clause 1 of the Code of Official
Conduct that he behave ``at all times'' in a manner that reflects
``creditably'' on the House. Manual Sec. 1095. Examples of
disciplinary measures recommended by the Committee on Standards of
Official Conduct against certain Members for conduct that violated
clause 1 of the Code include:
Failure to report campaign contributions, and perjury. These
Members were officially reprimanded by the House. H. Res. 1415,
H. Rept. 95-1742, In re McFall, Oct. 13, 1978, p 37005; H. Res.
1416, H. Rept. 95-1743, In re Roybal, Oct. 13, 1978, p 37009.
Conviction by a jury on bribery or other corruption charges.
Member was expelled by the House. H. Res. 794, H. Rept. 96-
1387, In re Myers, Oct. 2, 1980, p 28953; H. Res. 495, H. Rept.
107-594, In re Traficant, July 24, 2002, p ____.
Misuse of the congressional clerk-hire allowance for personal
gain. Member was censured by the House by a unanimous vote and
was required to make restitution of monies in the amount that
he had personally benefited. H. Res. 378, H. Rept. 96-351, In
re Diggs, July 31, 1979, p 21584.
[[Page 504]]
Engagement in sexual relationships with pages employed by the
House. Although the committee recommended that both Members be
reprimanded, the House voted to censure. H. Res. 265, H. Rept.
98-295, In re Studds, July 20, 1983, p 20030; H. Res. 266, H.
Rept. 98-296, In re Crane, July 20, 1983, p 20020.
The committee may find that a Member has brought discredit to the
House, but recommend no formal sanction. H. Rept. 104-876, In re
Collins; H. Rept. 105-797, In re Kim. The committee also may send the
offending Member a letter of reproval. H. Rept. 106-979, In re
Shuster.
The House voted to reprimand the Speaker for bringing discredit on
the House. H. Res. 31, H. Rept. 105-1, In re Gingrich, Jan. 21, 1997,
p 393.
Adhering to the ``Spirit and Letter'' of the Rules
Clause 2 of the Code of Official Conduct provides that a Member,
officer, or employee of the House must ``adhere to the spirit and the
letter'' of the rules of the House and to the rules of its committees.
Manual Sec. 1095. This rule has been interpreted to mean that a Member
or employee may not do indirectly what the Member or employee would be
barred from doing directly. Advisory Opinion No. 4, Select Committee
on Ethics, 95th Cong.
In 1988 the Committee on Standards of Official Conduct concluded
that a Member's acceptance of an illegal gratuity on three occasions
constituted action that discredited the House as an institution in
violation of rule XXIII clause 1; and, having violated the ``spirit''
of clause 1, he also violated rule XXIII clause 2. H. Rept. 100-506,
In re Biaggi. Although purposeful violation of any rule of the House
could potentially be considered an infraction under rule XXIII clause
2, the committee has issued advisory opinions touching on some of the
rules that specifically pertain to Members' conduct. In addition to
the restrictions contained in the Code of Conduct, rules XXIV
(Limitations on Use of Official Funds), XXV (Limitations on Outside
Earned Income and Acceptance of Gifts), and XXVI (Financial
Disclosure) have been addressed by the committee in its House Ethics
Manual and its booklets entitled Gifts and Travel and Campaign
Activity.
Sec. 8 . Code of Ethics for Government Service
A Code of Ethics to be adhered to by all government employees,
including office holders, was adopted by concurrent resolution in
1958. 85-2, H. Con. Res. 175, July 11, 1958; 85-2; House Ethics
Manual, 102d Cong. This Code requires that any person in government
service should, among other things, give a full day's labor for a full
day's pay; never accept favors or benefits under circumstances that
``might be construed by reasonable persons as influencing the
performance of his governmental duties;''
[[Page 505]]
engage in no business with the government, either directly or
indirectly, that is inconsistent with the conscientious performance of
his governmental duties; and never use any information coming to him
confidentially in the performance of governmental duties as a means of
making a private profit.
The Committee on Standards of Official Conduct has indicated that
the Code of Ethics is an expression of traditional standards of
conduct that continues to be applicable, even though the Code was
enacted merely in the form of a concurrent resolution that expired
with the adjournment of the Congress in which it was adopted. H. Rept.
94-1364, In re Sikes.
The ethical standards of this Code have provided the basis for
disciplinary proceedings against Members. E.g., H. Rept. 100-506, In
re Biaggi. In one instance, charges concerning the use of a Member's
official position for pecuniary gain were heard by the committee. The
committee found that the Member had failed to report his ownership of
certain stock and that he bought stock in a bank following active
efforts in his official capacity to obtain a charter for the bank.
These charges resulted in a reprimand of the Member. H. Res. 1421, H.
Rept. 94-1364, In re Sikes, July 29, 1976, p 24379.
Sec. 9 . Violations of Statutes
Generally
The Members of Congress, unless immunized by the Speech or Debate
Clause of the Constitution, are subject to the same penalties under
the criminal laws as are all citizens. Manual Sec. 93; Deschler Ch 12
Sec. 3. In addition to rules XXIII through XXVI, the Federal criminal
code addresses the conduct of Members, officers, and employees with
respect to bribery of public officials (18 USC Sec. 201), claims
against the Government (18 USC Sec. Sec. 203-205, 207(e), 216), and
public officials acting as agents of foreign principals (18 USC
Sec. 219). The violation of such statutes may be considered by the
Committee on Standards of Official Conduct in recommending
disciplinary actions to the House.
Thus, a Member's conviction under section 201 of title 18, United
States Code, of accepting an illegal gratuity was cited as one of the
grounds for the committee's recommendation that the Member be
expelled. H. Rept. 100-506, In re Biaggi. The committee may find that
a Member has violated certain statutes but recommend no formal
sanction. H. Rept. 104-876, In re Collins; H. Rept. 105-797, In re
Kim. The committee also may send the offending Member a letter of
reproval. H. Rept. 106-979, In re Shuster. The House voted to
reprimand a Speaker for violating certain provisions of the
[[Page 506]]
Internal Revenue Code. 105-1, H. Res. 31, H. Rept. 105-1, In re
Gingrich, Jan. 21, 1997, p 393.
Any disciplinary measure that the House invokes against a Member
for an alleged or proven violation of such a statute is separate and
distinct from sanctions that may be sought by law enforcement
authorities at the State or Federal level. Criminal prosecution may
precede or follow committee investigation or House censure for the
same offense. See United States v. Diggs, 613 F.2d 988 (D.C. Cir.
1979), cert. denied, 446 U.S. 982 (1980); H. Res. 378, H. Rept. 96-
351, In re Diggs, July 31, 1979, p 21584.
Rule XI clause 3 authorizes the Committee on Standards of Official
Conduct to report to the appropriate Federal or State authorities, by
majority vote with the approval of the House or by two-thirds vote of
the committee alone, any substantial evidence of a violation of an
applicable law by a Member, officer, or employee of the House, that
may have been disclosed in a committee investigation. Manual Sec. 806.
During the committee's investigation of Speaker Gingrich, the
committee received documents that may have proved useful to the
Internal Revenue Service. The House adopted the recommendation of the
committee to make those documents available to the Internal Revenue
Service and to establish a liaison to aid the transfer of documents.
H. Res. 31, H. Rept. 105-1, In re Gingrich, Jan. 21, 1997, p 393.
Conviction as Basis for Committee Action
Rule 19(e) of the rules of the Committee on Standards of Official
Conduct requires the committee to undertake an investigation with
regard to any felony conviction of a Member, officer, or employee of
the House in a Federal, State, or local court. The rule further
provides that the investigation may proceed at any time before
sentencing. See, e.g., H. Rept. 107-594, In re Traficant. The
committee may review evidence presented at the Member's trial,
including the trial transcript, transcripts of recorded phone
conversations, and oral intercepts. H. Rept. 100-506, In re Biaggi.
Examples of disciplinary measures recommended by the Committee on
Standards of Official Conduct based on criminal convictions include
bribery convictions or findings as to the receipt of money by a Member
for exercising his influence in the House. H. Rept. 96-1387, In re
Myers; H. Rept. 96-856, In re Flood; H. Rept. 96-1537, In re Jenrette;
H. Rept. 97-110, In re Lederer; H. Rept. 100-506, In re Biaggi; H.
Rept. 107-594, In re Traficant.
In 1980, charges involving alleged bribes of Members of Congress
led to investigations by both the Committee on Standards of Official
Conduct and the Department of Justice. The committee was authorized to
conduct an inquiry into such alleged improper conduct, to coordinate
its investigation with the Justice Department, to enter into
agreements with the Justice De
[[Page 507]]
partment, and to participate, by special counsel, in any judicial
proceeding concerning or relating to the inquiry. 96-2, H. Res. 608,
Mar. 27, 1980, p 6995; 97-1, H. Res. 67, Mar. 4, 1981, p 3529.
The House may choose to initiate disciplinary proceedings against
a Member upon a Member's conviction even when that Member has not
exhausted all of his appeals in the criminal process. See Sec. 19,
infra.
Sec. 10 . Misuse of Hiring Allowance; False Claims
Rule XXIII clause 8 prohibits a Member from retaining anyone under
his payroll authority who does not perform duties commensurate with
the compensation he receives. Closely related to this rule is the
False Claims Act, which imposes liability on persons making claims
against the government knowing such claims to be false or fraudulent.
31 USC Sec. 3729; 18 USC Sec. 287. Because a Member must formally
authorize salary payments to his aides, he may be found to have
violated Federal law if he knows that such payments are being made to
an aide who is not doing official work commensurate with such pay, or
if he is drawing on clerk-hire funds to meet his own personal or
congressional expenses. See United States v. Diggs, 613 F.2d 988 (D.C.
Cir. 1979), cert. denied, 446 U.S. 982 (1980). The False Claims Act is
applicable where a Member submits false travel vouchers to the Clerk
of the House. See U.S. ex rel. Hollander v. Clay, 420 F. Supp. 853
(D.D.C. 1976). Liability under the Act likewise arises where a Member
has falsely certified certain long-distance phone calls as being
official calls in order to obtain reimbursement for them. United
States v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980).
Sec. 11 . Discrimination in Employment
Rule XXIII clause 9 includes provisions barring discrimination
against any individual with respect to compensation or other
conditions of employment because of such individual's race, color,
religion, sex, handicap, age, or national origin. The Committee on
Standards of Official Conduct has concluded that sexual harassment is
a form of discrimination in employment that is prohibited by clause 9.
In one case the committee issued a letter of reproval to a Member for
his conduct in interacting with two female employees on his staff. H.
Rept. 101-293, In re Bates.
The earliest form of the rule on ``employment practices''grew out
of the Fair Employment Practices Resolution first adopted in the 100th
Congress. 100-2, H. Res. 558, Oct. 3, 1988, p 27840; 101-1, H. Res.
15, Jan. 3, 1989, p 85. The terms of that resolution were incorporated
by reference in a standing in the 102d Congress. 102-1, H. Res. 5,
Jan. 3, 1991, p 39.
[[Page 508]]
It was codified in full text, with certain amendments, in the 103d
Congress. 103-1, H. Res. 5, Jan. 5, 1993, p 49. The Employment
Practices rule was overtaken by the earliest form of a rule addressing
the ``application of certain laws,'' in the 103d Congress. 103-2, H.
Res. 578, Oct. 7, 1994, p 29326. The Application of Laws rule, in
turn, was overtaken by the Congressional Accountability Act of 1995. 2
USC Sec. 1301. Certain savings provisions appear in section 506 of
that Act. 2 USC Sec. 1435.
Sec. 12 . Campaign Fund Irregularities
Members of the House are governed by many restrictions and
regulations concerning the use of campaign funds and must comply with
various campaign finance procedures. These requirements are found
primarily in the Federal Election Campaign Act of 1971. 2 USC
Sec. 431. Under this statute, the Federal Election Commission was
established as an independent regulatory agency with jurisdiction over
Federal campaign finance practices. 2 USC Sec. Sec. 437c-438.
Rule XXIII clause 6 requires that Members use campaign funds
solely for campaign purposes and specifically prohibits the personal
use of such funds. This includes the requirements that Members keep
campaign funds separate from personal funds; may not convert campaign
funds to personal use except for reimbursement for legitimate,
verifiable prior campaign expenses; and may not expend campaign funds
for other than bona fide campaign or political purposes. The committee
has taken the position that any use of campaign funds that personally
benefits the Member rather than exclusively and solely benefiting the
campaign is not a ``bona fide campaign purpose.'' H. Rept. 99-933, In
re Weaver; H. Rept. 100-526, In re Rose. Although campaign funds may
be invested, a candidate who borrows money from his own campaign is
presumed to be receiving a personal benefit; that is, the use of the
money.
The Committee on Standards of Official Conduct has found that
Members have violated rule XXIII clause 6 by transferring campaign
funds to personal accounts or borrowing from their campaign funds.
See, e.g., H. Rept. 96-930, In re Wilson; H. Rept. 99-933, In re
Weaver.
The House has adopted reports of the committee recommending
reprimand of Members who have failed to report a campaign contribution
or have converted a campaign contribution to personal use See, e.g.,
H. Res. 1415, H. Rept. 95-1742, In re McFall, Oct. 13, 1978, p 37005;
H. Res. 1416, H. Rept. 95-1743, In re Roybal, Oct. 13, 1978, p 37009.
In two cases, Members were found to have violated Federal election
campaign
[[Page 509]]
laws, but no formal sanctions were issued. H. Rept. 104-876, In re
Collins; H. Rept. 105-797, In re Kim.
Rule XXIII clause 7 requires any proceeds from testimonials or
other fund-raising events to be treated by Members as campaign
contributions. The Committee on Standards of Official Conduct has
compiled a complete statement of the rules on campaign funds, which
supersedes chapter 8 of the 1992 House Ethics Manual, entitled
Campaign Activity, 107th Cong.
Sec. 13 . Solicitation of Contributions From Government Employees
A Federal statute prohibits Members of Congress (and candidates
for Congress) from soliciting political contributions from employees
of the House and from other Federal government employees. 18 USC
Sec. 602. Under this statute it must actually be known that the person
who is being solicited is a Federal employee. Inadvertent
solicitations to persons on a mailing list during a general fund-
raising campaign are not prohibited. H. Rept. 96-930, In re Wilson.
Because the statute by its terms is directed at protecting
``employees,'' it does not prevent one Member from soliciting another
Member. See 6 Cannon Sec. 401 (in which the House adopted a resolution
construing the predecessor statute).
In 1985, the Committee on Standards of Official Conduct initiated
a preliminary investigation into charges that a ``Dear Colleague''
letter had been used to solicit Members' staffs in House office
buildings. However, the committee took the view that the statute was
directed against coercive activities; that is, political
``shakedowns.'' The committee concluded that, in the absence of any
evidence of ``victimization'' (i.e., coercion of congressional staff)
the solicitations were not precluded by that law. H. Rept. 99-277. The
committee concluded, however, that neither staff (paid or volunteer)
while on official time, nor Federal office space at any time, should
be used to prepare or distribute material involving solicitations of
political contributions. H. Rept. 99-227; see also H. Rept. 99-1019.
Sec. 14 . Limitations on Earned Income; Honoraria
Rule XXV clause 1 places restrictions upon the amount of outside-
earned income a Member, officer, or employee may receive. This
provision limits the amount of aggregate outside-earned income in a
calendar year to 15 percent of an annual congressional salary. The
limitation applies to earned income for personal services, rather than
monies that are essentially a return on equity. In this regard, the
facts of a particular case will be regarded as controlling, rather
than the characterization of such monies as out
[[Page 510]]
side-earned income. Advisory Opinion No. 13, Select Committee on
Ethics, 95th Cong. (reprinted in H. Rept. 95-1837).
Under rule XXV clause 3, a Member, officer, or employee may
receive neither an advance payment on copyright royalties nor
copyright royalties under a contract unless it is first approved by
the Committee on Standards of Official Conduct as complying with the
requirement that the royalties are received from an established
publisher under usual and customary contractual terms.
A restriction against honoraria is imposed by rule XXV clause 1.
In 1989 special outside counsel concluded that Speaker Wright had
retained excessive honoraria and other outside income, styled as
``royalties,'' which he accepted from special interest groups from the
sale of his book. 101-1, Statement of the Committee on Standards of
Official Conduct In re Wright, Apr. 17, 1989.
Sec. 15 . Acceptance of Gifts
Rule XXV clause 5 permits acceptance of a gift only if it has an
individual value of less than $50 and a cumulative value from any one
source in the calendar year of less than $100 (the value of perishable
food sent to an office is allocated among the individual recipients
and not to the Member). Clause 5 defines the term ``gift'' and
outlines various exceptions to the rule. The Committee on Standards of
Official Conduct in the 96th Congress recommended the censure of a
Member for misconduct that included the acceptance of gifts of money
from a person with a ``direct interest in legislation'' before
Congress. The committee determined that certain checks that had been
marked ``loans'' were not true loans. On the basis of this and other
violations, the House, after rejecting a motion to recommit that would
have permitted a reprimand, voted to censure. H. Res. 660, H. Rept.
96-930, In re Wilson, June 10, 1980, p 13801. In 1988 the committee
concluded that a Member's acceptance of illegal gratuities in trips to
St. Maarten and Florida established per se violations of the gift rule
since those events, both individually and in the aggregate, far
exceeded the $100 limit then imposed by the gift rule. H. Rept. 100-
506, In re Biaggi.
In 1977 the committee was empowered to investigate the alleged
receipt by Members of ``things of value'' from the Korean government.
95-1, H. Res. 252, Feb. 9, 1977, p 3966. Subsequently, the House
adopted a committee report recommending the reprimand of a Member on
the basis of the committee's finding that he had failed to disclose,
in a questionnaire sent to all Members by the committee, his receipt
of currency and valuables
[[Page 511]]
worth more than $100 from representatives of Korea. H. Res. 1414, H.
Rept. 95-1741, In re Wilson, Oct. 13, 1978, p 36976.
The Committee on Standards of Official Conduct has compiled a
complete statement of the rules on gifts and travel. The new
compilation supersedes chapter 2 of the 1992 House Ethics Manual,
entitled Gifts and Travel, 106th Cong.
Sec. 16 . Financial Disclosure
Title I of the Ethics in Government Act of 1978 requires Members,
officers, and certain employees of the House to file an annual
Financial Disclosure Statement. 5 USC App Sec. Sec. 101-111. This law,
which is incorporated into House rule XXVI, was intended to regulate
and monitor possible conflicts of interest due to outside financial
holdings. Manual Sec. 1103.
In the 94th Congress the House reprimanded a Member for certain
conduct occurring during prior Congresses, which included failure to
make proper financial disclosures. H. Res. 1421, H. Rept. 94-1364, In
re Sikes, July 29, 1976, p 24379. The Committee on Standards of
Official Conduct has concluded that a Member accepted certain gifts
that were subject to mandatory disclosure under the Ethics in
Government Act. H. Rept. 100-506, In re Biaggi; H. Rept. 105-797, In
re Kim.
Sec. 17 . Professional Practice Restrictions
Members are subject to various restrictions relating to their
professional affiliations while serving in the House. Thus, Members
are prohibited from receiving compensation for legal services before
agencies of the Federal government. Rule XXV clause 2; 18 USC
Sec. 205. Under this rule, Members, officers, and certain senior
employees may not:
Receive compensation from affiliation with a firm providing
professional services for compensation that involve a fiduciary
relationship except for the practice of medicine.
Permit their names to be used by any such firm or other
entity.
Practice a profession for compensation that involves a
fiduciary relationship except for the practice of medicine.
Serve for compensation on the board of directors of any
association, corporation, or other entity.
Receive compensation for teaching without prior notification
and approval.
Manual Sec. 1099.
[[Page 512]]
Sec. 18 . Acts Committed in Prior Congress or Before Becoming a Member
Under rule XI clause 3(b)(3), the Committee on Standards of
Official Conduct may not investigate an alleged violation of a law,
rule, regulation, or standard of conduct that was not in effect at the
time of the alleged violation. Also excepted from investigation are
alleged violations that occurred before the third previous Congress
unless the committee determines that such matters were directly
related to an alleged violation that occurred in a more recent
Congress. Manual Sec. 806.
Historically, it has been within the prerogative of the House to
censure a Member for misconduct occurring in a prior Congress,
notwithstanding his reelection. Deschler Ch 12 Sec. 16. However, the
question whether the offense was known to his constituency at the time
of his election is a factor to be considered. 2 Hinds Sec. 1286. Thus,
in 1976 the House adopted the recommendation of the committee that a
Member be reprimanded for certain conduct occurring during prior
Congresses that involved financial irregularities but declined to
recommend punishment for prior conflict-of-interest conduct that had
occurred in 1961, where such conduct had apparently been known to a
constituency that had continually reelected him. H. Res. 1421, H.
Rept. 94-1364, In re Sikes, July 29, 1976, p 24379.
The House has asserted jurisdiction under article I, section 5 of
the Constitution to inquire into the misconduct of a Member occurring
before his last election and to impose at least those sanctions short
of expulsion. H. Res. 378, H. Rept. 96-351, In re Diggs, July 31,
1979, p 21584; 2 Hinds Sec. 1283. In one case, the committee
investigated violations of Federal election laws that allegedly
occurred before the respondent became a Member. H. Rept. 105-797, In
re Kim.
Expulsion thus far has been applied to Members only with respect
to offenses occurring during their terms of office and not to action
taken by them before their election. Deschler Ch 12 Sec. 13. A
resolution calling for the expulsion of a Member was reported
adversely by the committee and tabled by the House, 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. The committee found that although the conviction related to
moral turpitude, it did not relate to official conduct while a Member
of Congress. H. Res. 1392, H. Rept. 94-1478, In re Hinshaw, Sept. 8,
1976, p 29274, Oct. 1, 1976, p 35111.
If a Member's term of office expires before a pending resolution
of expulsion against him is adopted, the proceedings are discontinued.
2 Hinds Sec. 1276.
[[Page 513]]
C. Nature and Forms of Disciplinary Measures
Sec. 19 . In General
Kinds of Disciplinary Measures
The primary disciplinary measures that may be invoked by the House
against a Member include expulsion, censure or reprimand, fines or
other economic sanctions (such as reimbursement of the investigative
costs of the committee), and deprivation of seniority or committee
status.
Reprimand is appropriate for serious violations, censure is
appropriate for more-serious violations, and expulsion of a Member is
appropriate for the most-serious violations. Rule 25(g), Rules of the
Committee on Standards of Official Conduct, 107th Cong.
Generally, the type of disciplinary measure invoked will depend on
the nature of the offense charged. Where there are mitigating
circumstances, the committee sometimes issues a public letter of
reproval. See, e.g., H. Rept. 100-526, In re Rose; H. Rept. 106-979,
In re Shuster. This letter may include a direction to the Member that
he apologize. H. Rept. 101-293, In re Bates. The House itself may
extract an apology from the offending Member. 2 Hinds Sec. Sec. 1650,
1657.
Effect of Court Conviction or Pendency of Judicial Proceedings
Under a former practice, where a Member had been convicted of a
crime, the House would defer taking disciplinary action until the
judicial processes had been exhausted. 6 Cannon Sec. 238. Under the
more recent practice, the House may choose--as it did in the 96th and
107th Congresses--to initiate disciplinary proceedings against a
Member for conduct even when that Member has not exhausted all of his
appeals in the criminal process. H. Res. 378, H. Rept. 96-351, In re
Diggs, July 31, 1979, p 21584; H. Res. 495, H. Rept. 107-594, In re
Traficant, July 24, 2002. p ____. Although a criminal conviction may
be appealed, such a course of action and its outcome have no bearing
on either the timing or the nature of the decision reached by the
House. H. Rept. 100-506, In re Biaggi.
Rule XXIII clause 10 provides that a Member who is convicted of a
crime for which a prison sentence of two or more years could be
imposed should refrain from committee business and from voting in the
House until judicial or executive proceedings reinstate the Member's
presumption of innocence or until he is reelected to the House after
his conviction. Manual Sec. 1095.
[[Page 514]]
Resolutions and Reports
A resolution proposing disciplinary action against a Member may be
called up in the House as a question of privilege. Manual Sec. 703; 2
Hinds Sec. 1254; 3 Hinds Sec. Sec. 2648-2651. Where the Committee on
Standards of Official Conduct after investigation recommends that
disciplinary action be taken against a Member by the House, it
normally files a privileged report with a form of resolution proposing
the action. However, where the committee finds an allegation without
merit or issues a lesser sanction, such as a letter of reproval, the
committee files its report for the information of the House without an
accompanying resolution. Where a Member is defeated (including in a
primary), the committee may report violations to the House at the end
of the Congress without recommending sanctions. H. Rept. 105-797, In
re Kim.
Under rule XI clause 3(a), the committee may recommend to the
House from time to time such administrative actions as it may consider
appropriate to establish or enforce standards of official conduct.
However, a letter of reproval or other administrative action of the
committee that resulted from an investigation under clause 3(a)(2) may
be implemented only as a part of its report to the House. The rule
also requires that the committee report to the House on the final
disposition of any case it has voted to investigate. Manual Sec. 806.
A resolution adopting a committee report may be offered as
follows:
Resolved, That the House of Representatives adopt the report by
the Committee on Standards of Official Conduct dated __________ in
the matter of Representative __________.
Consideration and Debate
A disciplinary resolution presents a question of privilege. Manual
Sec. 66. If reported by the Committee on Standards of Official Conduct
(or a derivation thereof), a disciplinary resolution may be called up
at any time after the committee has filed its report. Manual Sec. 66.
An unreported resolution may be called up by any Member as privileged
under rule IX with proper notice (or by the Majority or Minority
Leader without notice). Manual Sec. 703; 3 Hinds Sec. 2649.
Rule IV clause 2(a)(16) permits an accused Member to be
accompanied by counsel on the floor of the House when the committee's
recommendation on his case is under consideration by the House. Manual
Sec. 678.
Debate on a disciplinary resolution reported by the committee is
under the hour rule, the chairman of the committee being recognized
for the entire hour. 8 Cannon Sec. 2448; Deschler Ch 12 Sec. 16.
Debate on a resolution raising
[[Page 515]]
a question of the privileges of the House (which may include a
disciplinary resolution) offered from the floor under rule IX also is
debatable for one hour but the hour is equally divided between the
proponent and the Majority Leader or Minority Leader. Manual Sec. 713.
The manager of a disciplinary resolution may yield time to the
Member charged to speak or to yield in his behalf. 107-2, July 24,
2002, p ____. In one instance the Member charged, after declining to
speak, yielded all of his time to another Member. 96-1, July 31, 1979,
p 21584.
A Member whose expulsion is proposed may be permitted to present a
written defense. 2 Hinds Sec. 1273. However, if the previous question
is moved on a proposition to censure, the effect may be to prevent the
Member charged from making an explanation or presenting a defense.
After the House has voted to censure, it is too late for the Member to
be heard. 2 Hinds Sec. 1259; 5 Hinds Sec. 5459.
Debate on a pending privileged resolution recommending
disciplinary action against a Member necessarily may involve
personalities. However, rule XVII clause 1 still prohibits the use of
language that is personally abusive or profane. During the actual
pendency of such a resolution, a Member may discuss a prior case
reported to the House by the Committee on Standards of Official
Conduct for the purpose of comparing the severity of the sanction
recommended in that case with the severity of the sanction recommended
in the pending case, provided that the Member does not identify, or
discuss the details of the past conduct of, a sitting Member. Manual
Sec. 361.
The Speaker also has advised that Members should refrain from
references in debate to the motivations of a Member who filed a
complaint before the Committee on Standards of Official Conduct, to
personal criticism of a member of the committee, and to an
investigation undertaken by the committee, including the suggestion of
a course of action or the advocacy of an interim status report by the
committee. Manual Sec. 361.
Because an accurate record of disciplinary proceedings is
important, the House may agree by unanimous consent to ban revisions
or extensions of remarks delivered during the floor debate. Compare
96-2, May 29, 1980, p 12661, with 107-2, July 24, 2002, p ____
(general leave granted).
It is for the House and not the Speaker to judge the conduct of
Members. It is, accordingly, not a proper parliamentary inquiry to ask
the Chair to interpret the application of a criminal statute to a
Member's conduct. Manual Sec. 1095.
[[Page 516]]
Effect of Resignation
The resignation of a Member at a time when expulsion proceedings
against him are pending generally results in the suspension or
discontinuance of the proceedings. 2 Hinds Sec. 1275; 6 Cannon
Sec. 238. Similarly, where a Member resigns after a committee of
investigation has found him guilty of improper conduct and deserving
of censure, the House may discontinue the proceeding. 6 Cannon
Sec. 398. However, the House may adopt a resolution censuring his
conduct even after his resignation has been submitted. 2 Hinds
Sec. Sec. 1239, 1273, 1275.
Sec. 20 . Expulsion
The House has the power under the Constitution to expel a Member
by a two-thirds vote. U.S. Const. art. I, Sec. 5, cl. 2. The
discretionary power of the House to expel one of its Members has been
said to be unlimited. 6 Cannon Sec. 78. However, the House has
consistently refused to expel a Member for acts unrelated to him as a
Member or to his public trust and duty. H. Rept. 56-85; 1 Hinds
Sec. 476. In 1976 an expulsion resolution was reported adversely and
tabled by the House where a Member had been convicted of bribery under
State law for acts occurring before his election to the House, because
the conviction did not relate to his official conduct while a Member
of Congress. Deschler Ch 12 Sec. 13.1.
The power to expel extends to all cases where the offense is such
as to be inconsistent with the trust and duty of the Member. In re
Chapman, 166 U.S. 661, 669 (1897). The purpose of expulsion is not
merely to provide punishment but also to remove a Member whose
character and conduct show that he is unfit to participate in the
deliberations and decisions of the House and whose presence in it
tends to bring that body into contempt and disgrace. 2 Hinds
Sec. 1286. The fundamental governing consideration underlying
expulsion proceedings is whether the individual charged has displayed
conduct inconsistent with the trust and duty of a Member. In re
Chapman, 166 U.S. 661, 669 (1897).
The House has considered proposals to expel on many occasions.
Expulsion was used during the Civil War against three Members charged
with being in rebellion against the United States or with having taken
up arms against it. 2 Hinds Sec. Sec. 1261, 1262. More recently, the
House expelled a Member who had been convicted in a Federal court of
bribery and conspiracy in accepting funds to perform official duties.
H. Res. 794, H. Rept. 96-1387, In re Myers, Oct. 2, 1980, p 28953. The
Committee on Standards of Official Conduct recommended the expulsion
of two Members who had, among other acts of misconduct, accepted
illegal gratuities. H. Rept. 97-
[[Page 517]]
110, In re Lederer; H. Rept. 100-506, In re Biaggi. Both cases
terminated with the Members' resignations.
In 2002 the House expelled a Member for illegal activities that
resulted in Federal criminal convictions including (1) trading
official acts and influence for things of value; (2) demanding and
accepting salary kickbacks from his congressional employees; (3)
influencing a congressional employee to destroy evidence and to
provide false testimony to a Federal grand jury; (4) receiving
personal labor and the services of his congressional employees while
they were being paid by the taxpayers to perform public service; and
(5) filing false income tax returns. H. Res. 495, H. Rept. 107-594, In
re Traficant, July 24, 2002, p ____.
Following the expulsion of a Member, the Clerk notifies the
Governor of the relevant State of the action of the House. 107-2, July
24, 2002, p ____.
There have been many instances in which an expulsion proposal
considered in the House has failed, either because it was not
supported by a two-thirds vote or because the House preferred some
lesser penalty, such as reprimand. This has occurred where a Member
was charged with:
Publishing an article alleged to be in violation of the
privileges of the House. 2 Hinds Sec. 1245.
Abuse of the leave to print. 6 Cannon Sec. 236.
Involvement in an affray on the floor of the House. 2 Hinds
Sec. 1643.
Assaulting a Senator. 2 Hinds Sec. 1621.
Uttering words alleged to be treasonable. 2 Hinds
Sec. Sec. 1253, 1254.
Accepting money for nominating a person to the military
academy. 2 Hinds Sec. 1274.
Attempting to bribe Members of Congress by offering them
shares of stock at sums below their actual value. 2 Hinds
Sec. 1286.
Assaulting another Member for words spoken in debate. 2 Hinds
Sec. 1656.
Using offensive language toward another Member on the floor
and deceiving the Speaker when the Speaker attempted to control
the debate. 2 Hinds Sec. 1251.
Seeking improper dismissal of parking tickets and making
misstatements of fact in a memorandum relating to an
associate's criminal probation record. H. Res. 440, H. Res.
442, H. Rept. 101-610, In re Frank, July 26, 1990, pp 19705,
19717.
Sec. 21 . -- Procedure; Resolutions of Expulsion
Generally; Form
Expulsion proceedings may be initiated by the introduction of a
resolution containing explicit charges, as follows:
[[Page 518]]
Whereas, the Hon. ______________, a Member of the House of
Representatives from the State of ______________, has, upon this day
______________: Therefore, be it
Resolved, That the said ______________, be, and he hereby is,
expelled from the House of Representatives.
2 Hinds Sec. Sec. 1254, 1261, 1262.
Under the more recent practice, allegations of misconduct have not
been included in the resolution as reported from the Committee on
Standards of Official Conduct but rather in the accompanying report:
Resolved, That pursuant to article I, section 5, clause 2 of the
United States Constitution, Representative______________, be, and he
hereby is, expelled from the House of Representatives.
H. Res. 495, H. Rept. 107-594, In re Traficant, July 24, 2002, p ____.
The resolution should be limited in its application to one Member
only, although several may be involved. Separate resolutions should be
prepared on each Member. Deschler Ch 12 Sec. 13.
A resolution proposing expulsion may provide for a committee to
investigate and report on the matter. Referral of such a resolution
normally is made to the Committee on Standards of Official Conduct.
Deschler Ch 12 Sec. 13. The resolution is subject to the motion to lay
on the table. Manual Sec. 66.
Under the Constitution, a resolution of expulsion requires the
support of two-thirds of those Members present and voting. An
amendment proposing expulsion may be agreed to by a majority vote;
but, on the proposition as amended, a two-thirds vote is required. 2
Hinds Sec. 1274. An amendment providing for censure is not germane to
a resolution of expulsion. 6 Cannon Sec. 236 (distinguishing 5 Hinds
Sec. 5923).
Sec. 22 . Censure; Reprimand
Generally
Censure and reprimand are two other forms of discipline that may
be administered pursuant to article I, section 5, clause 2 of the
Constitution, which authorizes the House to punish a Member for
disorderly behavior. Manual Sec. 63. These punitive measures are
ordered in the House by a majority of those voting, a quorum being
present. The House itself must order the sanction. The Speaker cannot
on his own authority censure a Member. Deschler Ch 12 Sec. 16.
During its history, the House has censured or reprimanded numerous
Members or Delegates. The House on occasion has made a distinction
between censure and reprimand, the latter being somewhat less
punitive. Cen
[[Page 519]]
sure is administered by the Speaker to the Member at the bar of the
House, perhaps in a manner specified in the resolution, including the
reading of the censure resolution. See, e.g., 96-1, July 31, 1979, p
21592; 96-2, June 10, 1980, p 13820. On the other hand, reprimand is
administered to the Member merely by the adoption of a committee
report. Deschler Ch 12 Sec. 16; 105-1, Jan. 21, 1997, p 459.
If necessary, the Member to be censured may be arrested and
brought to the bar for the Speaker's pronouncement. 2 Hinds
Sec. Sec. 1251, 1305. The censure appears in full in the Journal. 2
Hinds Sec. 1656; 6 Cannon Sec. 236. In rare instances, the House has
reconsidered a vote of censure or expunged a censure from the Journal
of a preceding Congress. 2 Hinds Sec. 1653; 4 Hinds Sec. Sec. 2792,
2793.
Sec. 23 . -- Grounds; Particular Conduct
The conduct for which censure may be imposed is not limited to
acts relating to the Member's official duties. The power to censure
extends to any reprehensible conduct that brings the House into
disrepute. Deschler Ch 12 Sec. 16.
Many early cases of censure involved the use of unparliamentary
language (2 Hinds Sec. Sec. 1247-1249, 1251, 1305), assaults on a
Member or Senator (2 Hinds Sec. Sec. 1621, 1656), or insults to the
House by the introduction of offensive resolutions (2 Hinds
Sec. Sec. 1246, 1256). During the Civil War, some Members whose
sympathies lay with the Confederacy were censured for uttering
treasonable words. 2 Hinds Sec. Sec. 1252-1254. Censure was also
invoked on the basis of evidence of corrupt acts by a Member. 2 Hinds
Sec. Sec. 1239, 1273, 1274, 1286.
More recent cases have seen censure or reprimand invoked against a
Member for:
Ignoring the processes and authority of the New York State
courts, and improperly using government funds. Deschler Ch 12
Sec. 16.1. Censure recommendation was rejected in favor of
other penalties. Sec. 1, supra.
Failing to report certain financial holdings, in violation of
the Code of Official Conduct, and investing in stock in a bank,
the establishment of which he was promoting, in violation of
the Code of Ethics for Government Service. H. Res. 1421, H.
Rept. 94-1364, In re Sikes, July 29, 1976, p 24377.
Failing to report a campaign contribution as required by law.
H. Res. 1415, H. Rept. 95-1742, In re McFall, Oct. 13, 1978, p
37005.
Failing to report a campaign contribution, converting a
campaign contribution to personal use, and testifying falsely
to the committee under oath. H. Res. 1416, H. Rept. 95-1743, In
re Roybal, Oct. 13, 1978, p 37009.
[[Page 520]]
Unjust enrichment through increasing an office employee's
salary. H. Res. 378, H. Rept. 96-351, In re Diggs, July 31,
1979, p 21584.
Receiving money from a person with direct interest in
legislation, in violation of rule XXIII clause 4, and
transferring campaign funds into office and personal accounts.
H. Res. 660, H. Rept. 96-930, In re Wilson, June 10, 1980, p
13801.
Sexual misconduct with a page. H. Res. 265, H. Rept. 98-295,
In re Studds, July 20, 1983, p 20030; H. Res. 266, H. Rept. 98-
296, In re Crane, July 20, 1983, p 20020.
Filing false financial disclosure statements in violation of
the Ethics in Government Act. H. Res. 558, H. Rept. 98-891, In
re Hansen, July 31, 1984, p 21650.
``Ghost voting,'' improperly diverting government resources,
and maintaining a ``ghost employee'' on his staff. H. Res. 335,
H. Rept. 100-485, In re Murphy, Dec. 18, 1987, p 36266.
Seeking improper dismissal of parking tickets and for
misstating facts in a memorandum relating to an associate's
criminal probation record. H. Res. 440, H. Rept. 101-610, In re
Frank, July 26, 1990, p 19717.
Sec. 24 . -- Censure Resolutions
Generally
The censure of a Member is imposed pursuant to a resolution
adopted by the House. Deschler Ch 12 Sec. 16. The resolution may take
the following form:
Resolved, That the Member from ____________, Mr. ____________, in
____________________ has been guilty of a violation of the rules and
privileges of the House and merits the censure of the House for the
same.
Resolved, That said ______ be now brought to the bar of the House
by the Sergeant-at-Arms, and the censure of the House be
administered there by the Speaker.
2 Hinds Sec. 1259.
The resolution may call for direct and immediate action by the
House. Deschler Ch 12 Sec. 16. Such a resolution should be drafted to
apply to only one Member, although two or more Members may be
involved. 2 Hinds Sec. Sec. 1240, 1621.
A resolution of censure presents a question of privilege. 3 Hinds
Sec. Sec. 2649-2651; 6 Cannon Sec. 239. The Speaker may recognize a
Member to offer a resolution of censure after the question on agreeing
to a resolution calling for expulsion has been decided adversely. 6
Cannon Sec. 236. A resolution reported from committee may be adopted
with an amendment converting the resolution from one of censure to one
of a lesser sanction, such as reprimand. Deschler Ch 12 Sec. 16.1; 95-
2, Oct. 13, 1978, p 37009.
[[Page 521]]
Effect of Apologies or Explanations
In situations involving censure for unparliamentary language or
behavior, the House may accept an apology or explanation from the
Member and terminate the proceedings. 2 Hinds Sec. Sec. 1250, 1257,
1258, 1652. The resolution of censure may be withdrawn. 2 Hinds
Sec. 1250. If the House already has voted to censure, it may
reconsider its vote and decide against censure. 2 Hinds Sec. 1653.
Sec. 25 . Fines; Restitution of Funds
Pursuant to its constitutional authority to punish its Members,
the House may levy a fine as a disciplinary measure against a Member
for certain misconduct. U.S. Const. art. I, Sec. 5, cl. 2; Deschler Ch
12 Sec. 17. The fine may be coupled with certain other disciplinary
measures deemed appropriate by the House. Examples of such fines
include the following:
For improper expenditure of House funds for private purposes,
a fine of $25,000, to be deducted in monthly installments from
the Member's salary. 91-1, H. Res. 2, Jan. 3, 1969, p 29.
For misuse of congressional clerk-hire, restitution of monies
in the amount in which the Member personally benefited by such
misuse. H. Res. 378, H. Rept. 96-351, In re Diggs, July 31,
1979, p 21584.
For a serious violation that, in the opinion of the Committee
on Standards of Official Conduct, was more serious than one
deserving reprimand but less serious than one deserving
censure, reimbursement to the committee for the cost of
conducting the investigation, which was $300,000. H. Res. 31,
H. Rept. 105-1, In re Gingrich, Jan. 21, 1997, p 393.
Fines imposed by the House are separate and distinct from those for
which a Member might be liable under Federal law.
Sec. 26 . Deprivation of Status; Caucus Rules
Seniority Status
Deprivation of seniority status is a form of disciplinary action
that may be invoked by the House against a Member under article I,
section 5, clause 2 of the Constitution. Thus, the House may reduce a
Member's seniority to that of a first-term Congressman. Deschler Ch 12
Sec. 18.2. The House may also reduce a Member's committee seniority as
a result of party discipline enforced through the Member's party
caucus. Deschler Ch 12 Sec. 18.1.
Committee Participation; Committee Chairman
The chairman of a committee of the House may be subjected to a
variety of disciplinary measures for misconduct in his capacity as
chairman. In
[[Page 522]]
one instance, a party caucus removed a Member from his position as
chairman of a committee based on a report disclosing certain
improprieties concerning his travel expenses and clerk-hiring
practices. Deschler Ch 12 Sec. 9.2. The members of a committee may,
consistent with the House rules, restrict a chairman's authority to
appoint special subcommittees or transfer authority from the chairman
to the membership and the subcommittee chairmen. Deschler Ch 12
Sec. Sec. 12.3, 12.4. The House, through the adoption of a resolution,
may restrict the power of the chairman to provide for funds for
investigations by subcommittees. Deschler Ch 12 Sec. 12.2. A
resolution alleging that a Member willfully abused his power as
chairman of a committee investigating campaign finance improprieties
by unilaterally releasing records of the committee in contravention of
its rules, and expressing disapproval of such conduct, constitutes a
question of the privileges of the House and may be tabled without
debate. 105-2, H. Res. 431, May 14, 1998, p ____.
Rule 25 of the rules of the Republican Conference requires the
chairman of any committee or subcommittee to step aside temporarily
when indicted for a felony for which a prison sentence of two or more
years could be imposed. Rule 26 imposes a similar requirement on a
member of the leadership. Rule 27 imposes a more stringent requirement
that the chairman of any committee or subcommittee be replaced when
censured by the House or convicted of a felony for which a prison
sentence of two or more years could be imposed. Rules of the
Republican Conference, 107th Cong. Rules 50 and 51 of the rules of the
Democratic Caucus impose similar step-aside requirements on its
chairmen or ranking minority members. Rules of the Democratic Caucus,
107th Cong.
Under rule XXIII clause 10, a Member, Delegate, or Resident
Commissioner who has been convicted by a court of record for the
commission of a crime for which a prison sentence of two or more years
could be imposed should refrain from participation in the business of
each committee of which he is a member.
Voting by a Member Convicted of Certain Crimes
Under rule XXIII clause 10, a Member who has been convicted by a
court of record for the commission of a crime for which a prison
sentence of two or more years could be imposed should refrain from
voting on any question in the House or the Committee of the Whole,
unless or until judicial or executive proceedings result in
reinstatement of the presumption of his innocence or until he is
reelected to the House after the date of such conviction.
[[Page 523]]
Sec. 27 . Letter of Reproval
A letter of reproval is a sanction the Committee on Standards of
Official Conduct may impose by majority vote. Rule 25(c), Rules of the
Committee on Standards of Official Conduct, 107th Cong. The committee
may issue a letter of reproval as indicated in the following examples:
For bringing discredit to the House with respect to a Member's
ongoing professional relationship with a former member of his
staff, with respect to his campaign committee, and for
violating House gift restrictions. H. Rept. 106-979, In re
Shuster.
For bringing discredit to the House by conduct in interacting
with two female employees. H. Rept. 101-293, In re Bates.
Where the committee cited mitigating circumstances. H. Rept.
100-526, In re Rose.
A letter of reproval may direct the Member to apologize. Deschler Ch
12 Sec. 13; H. Rept. 101-293, In re Bates.