[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 25. Ethics; Committee on Ethics]
[From the U.S. Government Publishing Office, www.gpo.gov]
HOUSE PRACTICE
A. Introductory
Sec. 1. In General
Sec. 2. Committee on Ethics
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 a 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
Sec. 25. Fines; Restitution of Funds
Sec. 26. Deprivation of Status; Caucus Rules
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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, 721b, 759, 806, 853, 1095-1103
House Ethics Manual, 111th Cong.
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 Ethics outline the following:
Expulsion from the House of Representatives.
Censure.
Reprimand.
Fine.
Denial or limitation of any right, power, privilege, or
immunity of the Member if under the Constitution the House of
Representatives may impose such denial or limitation.
Any other sanction determined by the Committee to be
appropriate.
Rule 24, Committee on Ethics, 112th 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 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. 64.
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 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.
[[Page 501]]
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 Ethics
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. The committee was renamed
the Committee on Ethics in the 112th Congress. 112-1, Jan. 5, 2011, p
__. Under clause 5(a)(5) of rule XIII, 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 Ethics, as set forth in
clause 1(g) of rule X, 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 of business from the Committee on Rules. See Manual
Sec. 853.
Investigative Jurisdiction; Recommendations and Reports
Pursuant to clause 3 of rule XI, the Committee on Ethics is
authorized to conduct investigations, hold hearings, and report any
findings and rec
[[Page 502]]
ommendations 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.
Recent Major Revisions to the Ethics Process
In the 105th Congress the House adopted a resolution sponsored by
the chair 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. Clause 5 of rule X.
Authority for the chair and ranking minority member jointly to
appoint members from the ``pool'' to serve on an investigative
subcommittee. Clause 5 of rule X.
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. Clause
3 of rule XI.
Change in the duration of service on the committee. Clause 5
of rule X.
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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.
Clause 3(c) of rule XI.
Requirement of a confidentiality oath by a Member, officer, or
employee having access to committee information. Clause 3(d) of
rule XI.
Exception for committee votes taken in executive session from
requirement that committees disclose record votes. Clause 3(b)
of rule XIII.
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.
Clause 3(b)(2)(B) of rule XI.
Authority for the chair and ranking minority member of the
committee jointly to gather preliminary additional information
with regard to a complaint or information offered as a
complaint. Clause 3(b)(1) of rule XI.
Authority for a subcommittee to authorize and issue a subpoena
only by affirmative vote of a majority of its members. Clause
2(m)(3) of rule XI.
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. Clause 3(a)(3) of rule XI.
Authority for the committee to take appropriate action in the
case of a frivolous complaint. Clause 3(e) of rule XI.
The resolution also included provisions requiring the committee to
adopt the following committee rules (which were codified in clause 3
of rule XI 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 chair and
the ranking minority member one additional staff member.
Permitting only the chair or ranking minority member to make
public statements regarding matters before the committee,
unless otherwise determined by a vote of the committee.
Providing the chair 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.
Granting the chair 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.
[[Page 504]]
Requiring the chair 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 stating 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 chair and ranking
minority member shall establish an investigative subcommittee.
105-1, H. Res. 168, Sept. 18, 1997, pp 19317-20; Manual Sec. 806.
Office of Congressional Ethics
In the 110th Congress, the House adopted a resolution establishing
an Office of Congressional Ethics (OCE). This independent, nonpartisan
office consists of 6 members: three appointed by the Speaker (with the
concurrence of the Minority Leader) and three appointed by the
Minority Leader (with the concurrence of the Speaker). The OCE
functions as a clearinghouse where alleged violations of the
applicable ethics rules are subject to preliminary investigation.
Unlike the Committee on Ethics, the OCE receives allegations from any
source (not just Members), and a request by any two members of the
board triggers an automatic preliminary review by the OCE. A further
vote is required to commence a second-phase review.
The OCE informs the Committee on Ethics of its progress throughout
the investigatory process, and also provides notice to the Member
being investigated. Upon the completion of an investigation, the OCE
reports to the Committee one of three conclusions: (1) the OCE
recommends that the complaint be dismissed; (2) the OCE recommends
that the complaint be investigated by the Committee; or (3) the OCE
has come to no conclusion due
[[Page 505]]
to a tie vote of the board. Conforming changes made to clause 3 of
rule XI require the Committee on Ethics either to make public the OCE
recommendation or to begin an investigation of its own. 110-1, H. Res.
895, Mar. 11, 2008, p 3741.
Sec. 3 . -- Membership; Eligibility for Committee Service;
Disqualification
The Committee on Ethics, 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. Clause 5(a)(3) of rule X. 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 chair 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
respective parties who are not members of the Committee on Ethics to
be available to serve on investigative subcommittees thereof. Clause
5(a)(4) of rule X.
Clause 3(b)(4) of rule XI provides that a member of the committee
shall be ineligible to participate in a committee proceeding relating
to such Member's 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. 806a.
Clause 3(b)(5) of rule XI permits members of the committee to
disqualify themselves from participation in any committee
investigation in which such members certify that they could not render
an impartial decision and authorizes the Speaker to appoint such
replacements as necessary 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 the subject of an ethics inquiry
and has notified the Speaker of such Member's ineligibility, the
Speaker may appoint another Member to serve on the committee during
the investigation. Manual Sec. 806.
Sec. 4 . -- Publications; Advisory Opinions
Under clause 3(a)(4) of rule XI, the Committee on Ethics is
authorized to issue and publish advisory opinions (also known as
``pink sheets'') with
[[Page 506]]
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. Recent advisory opinions may be found on the committee's
website.
Two prior publications, Gifts and Travel and Campaign Activity,
published as booklets in the 106th and 107th Congresses, respectively,
were incorporated into the 2008 House Ethics Manual. Advisory opinions
issued by the committee also may be found in the appendix to Chapter
12 of Deschler's Precedents. Additional information also is available
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 applicable
standards of conduct. This includes the ethics training for House
employees mandated by House rules. Clause 3(a)(6) of rule XI.
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 unauthorized
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. A resolution
requiring the Committee on Standards of Official Conduct (now Ethics)
to empanel an investigative subcommittee any time a Member has been
indicted or otherwise formally charged with criminal conduct was
adopted in the 110th Congress and carried forward in subsequent
Congresses.
Under clause 3(b)(1)(A) of rule XI, an investigation of particular
conduct also may be initiated by the Committee on Ethics, 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.
[[Page 507]]
Clause 3(b)(2) of rule XI; Manual Sec. 806. As noted earlier, an
investigation may also be initiated by a transmittal from the Office
of Congressional Ethics. See Sec. 2, supra.
Under clause 3(b)(1) of rule XI, the chair 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 clause 3(b)(2) of rule XI, 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 clause 3(e)(1) of rule XI, a complaint determined by the
Committee on Ethics 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
Clause 3(b)(6) of rule XI requires a vote of the Committee on
Ethics to authorize the public disclosure of the content of a
complaint or the fact of its filing.
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 clause 1 of rule XVII. 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 Ethics 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 res
[[Page 508]]
olution 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 clause 3(a)(1) of
rule XI to the Committee on Ethics 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 (now
Ethics) 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, reprimand, fine, or
any other sanction determined by the committee to be appropriate. Rule
24, Rules of the Committee on Ethics, 112th 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 (now Ethics) 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.
Under clause 3(a)(3) of rule XI, 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 such individual's duties or the discharge of such
individual's responsibilities that may have been disclosed in a
committee investigation.
[[Page 509]]
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 and 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-
1104. Rule XXVII, added in the 110th Congress, contains rules
governing disclosure of negotiations for future employment and recusal
in cases of conflicts of interest. This rule applies to Members,
officers, and employees of the House.
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 such
person has violated the requirement in clause 1 of the Code of
Official Conduct to 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 Ethics against
certain Members for conduct that violated clause 1 of the Code
include:
Failure to report campaign contributions and perjury. Certain
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 14319.
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.
Engagement in sexual relationships or other inappropriate
conduct with pages employed by the House. 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; 109-2, H.
Res. 1065, Sept. 29, 2006, p 21334.
[[Page 510]]
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 (now
Ethics) 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 clause 1 of rule XXIII; and, having
violated the ``spirit'' of clause 1, he also violated clause 2 of rule
XXIII. H. Rept. 100-506, In re Biaggi. Although purposeful violation
of any rule of the House could potentially be considered an infraction
under clause 2 of rule XXIII, 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),
XXVI (Financial Disclosure), and XXVII (Disclosure by Members and
Staff of Employment Negotiations) have been addressed by the committee
in its House Ethics Manual.
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; House Ethics Manual,
111th Cong. The Committee on Standards of Official Conduct (now
Ethics) 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 Code of Ethics 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 con
[[Page 511]]
strued as influencing the performance of governmental duties;'' engage
in no business with the government, either directly or indirectly,
that is inconsistent with the conscientious performance of
governmental duties; and never use any confidential information in the
performance of governmental duties as a means of making a private
profit.
The ethical standards of this Code have provided the basis for
disciplinary proceedings against Members. See, 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
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 XXVII, 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 Ethics 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 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 inves
[[Page 512]]
tigation 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.
Clause 3 of rule XI authorizes the Committee on Ethics 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 18(e) of the rules of the Committee on Ethics 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 Ethics 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 (now Ethics) 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 Department, 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 the appeals in the criminal process. See Sec. 19,
infra.
[[Page 513]]
Sec. 10 . Misuse of Hiring Allowance; False Claims
Clause 8 of rule XXIII prohibits a Member from retaining anyone on
payroll who does not perform duties commensurate with the compensation
received. 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 Members must formally authorize salary payments
to their aides, they may be in violation of Federal law if they know
that such payments are being made to an aide who is not doing official
work commensurate with such pay, or if such person is drawing on
clerk-hire funds to meet 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
Clause 9 of rule XXIII includes provisions barring discrimination
against any individual with respect to compensation or other
conditions of employment because of such individual's race, color,
religion, or sex, including marital or parental status, disability,
age, or national origin. The Committee on Standards of Official
Conduct (now Ethics) 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 rule in the 102d Congress. 102-1, H. Res.
5, Jan. 3, 1991, p 39. 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 Con
[[Page 514]]
gressional 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.
Clause 6 of rule XXIII 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 official expenses (subject to
the limitations in clause 1(b)(2) of rule XXIV); 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 such candidate's own campaign is presumed to be
receiving a personal benefit; that is, the use of the money.
The Committee on Standards of Official Conduct (now Ethics) has
found that Members have violated clause 6 of rule XXIII 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 laws, but no formal sanctions were issued. H. Rept. 104-876,
In re Collins; H. Rept. 105-797, In re Kim.
Clause 7 of rule XXIII requires any proceeds from testimonials or
other fundraising events to be treated by Members as campaign
contributions.
[[Page 515]]
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
fundraising 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 (now
Ethics) 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
Clause 1 of rule XXV 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 outside-earned income.
Advisory Opinion No. 13, Select Committee on Ethics, 95th Cong.
(reprinted in H. Rept. 95-1837).
Under clause 3 of rule XXV, 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 Ethics 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 clause 1 of rule
XXV. In 1989 special outside counsel concluded that Speaker Wright had
retained ex
[[Page 516]]
cessive 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 (now Ethics) In re Wright, Apr. 17, 1989.
Sec. 15 . Acceptance of Gifts
Clause 5 of rule XXV 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 (now Ethics) 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 the 110th Congress, rule XXV was amended to prohibit the
acceptance of any gifts from registered lobbyists, and to clarify the
valuation of tickets to sporting and entertainment events for purposes
of the gift rule.
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 worth more than $100 from representatives of
Korea. H. Res. 1414, H. Rept. 95-1741, In re Wilson, Oct. 13, 1978, p
36976.
In the 110th Congress, rule XXV was amended to provide
restrictions on privately funded travel for Members. Such restrictions
include prohibitions on funding by registered lobbyists, certification
requirements by Members, and a prohibition on using any funds for
travel aboard private aircraft. Reimbursement for official travel was
also made subject to new disclosure requirements.
[[Page 517]]
The current House Ethics Manual incorporates the prior publication
Gifts and Travel from the 106th Congress.
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 (now Ethics) 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. Clause 2 of rule XXV; 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.
Sec. 18 . Acts Committed in a Prior Congress or Before Becoming a
Member
Under clause 3(b)(3) of rule XI, the Committee on Ethics 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 pre
[[Page 518]]
vious 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 the reelection of such Member. Deschler Ch 12 Sec. 16.
However, the question whether the offense was known to such Member's
constituency at the time of the 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 such Member is adopted, the proceedings are
discontinued. 2 Hinds Sec. 1276.
[[Page 519]]
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 24(g), Rules of the
Committee on Ethics, 112th 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 to
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 the
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 14299. 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.
Clause 10 of rule XXIII 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 reelection to the House after
conviction. Manual Sec. 1095.
[[Page 520]]
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
Ethics 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
choose to report violations to the House at the end of the Congress
without recommending sanctions. H. Rept. 105-797, In re Kim.
Under clause 3(a) of rule XI, 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 Ethics dated _____ in the matter of Representative
_____.
Consideration and Debate
A disciplinary resolution presents a question of privilege. Manual
Sec. 63. If reported by the Committee on Ethics (or a derivation
thereof), a disciplinary resolution may be called up at any time after
the committee has filed its report. Manual Sec. 63. 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; 108-2, Oct. 8, 2004, p
22734; 109-2, Sept. 29, 2006, p 21334; 110-1, June 5, 2007, p 14600;
111-2, Apr. 14, 2010, p __.
Clause 2(a)(16) of rule IV permits an accused Member to be
accompanied by counsel on the floor of the House when the committee's
recommendation on such Member's case is under consideration by the
House. Manual Sec. 678.
[[Page 521]]
Debate on a disciplinary resolution reported by the committee is
under the hour rule, the chair of the committee being recognized for
the entire hour. 8 Cannon Sec. 2448; Deschler Ch 12 Sec. 16. Debate on
a resolution raising 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, Minority Leader, or a
designee. Manual Sec. 699.
The manager of a disciplinary resolution may yield time to the
Member charged to speak or to yield to other Members. 107-2, July 24,
2002, p 14309. 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 on the resolution itself. 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, clause 1 of rule XVII 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 Ethics 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 (now
Ethics), 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 14319
(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 522]]
Effect of Resignation
The resignation of a Member at a time when expulsion proceedings
against such Member 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 having been found
guilty of improper conduct (and deserving of censure) by a committee
of investigation, the House may discontinue the proceeding. 6 Cannon
Sec. 398. However, the House may adopt a resolution censuring such
conduct even after the 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 status as
a Member or to 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 demonstrate an unfitness 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 several 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 (now Ethics) recommended
the expulsion of two Members who had, among other acts of misconduct,
accepted illegal gratuities.
[[Page 523]]
H. Rept. 97-110, 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 14299.
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 14319.
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. 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 524]]
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 is hereby, 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
Ethics but rather in the accompanying report:
Resolved, That pursuant to article I, section 5, clause 2 of the
United States Constitution, Representative_______, be, and is
hereby, expelled from the House of Representatives.
H. Res. 495, H. Rept. 107-594, In re Traficant, July 24, 2002, p
14300.
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 Ethics. Deschler Ch 12 Sec. 13.
The resolution is subject to the motion to lay on the table. Manual
Sec. 63.
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. 62. 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 does
not have the unilateral authority to censure a Member. Deschler Ch 12
Sec. 16.
During its history, the House has censured or reprimanded numerous
Members and Delegates. The House on occasion has made a distinction
between censure and reprimand, the latter being somewhat less
punitive. Censure is administered by the Speaker to the Member at the
bar of the House,
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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; 111-2, Dec. 2, 2010, p __. 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. In one recent case, the House chose to adopt a resolution offered
from the floor as a question of the privileges of the House
``disapproving'' of the indecorous behavior of a Member. 111-1, H.
Res. 744, Sept. 15, 2009, p __.
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.
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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.
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 clause 4 of rule XXIII 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.
Using official resources to solicit funds for an educational
center, failing to file complete financial disclosure forms,
and failing to pay taxes on certain property. H. Res. 1737, H.
Rept. 111-661, In re Rangel, Dec. 2, 2010, p __.
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 ______, ______, 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.
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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.
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 (now Ethics), 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.
For failure to pay certain taxes, an order to pay restitution
to the appropriate taxing authority and provide proof to the
Committee of such payment. H. Res. 1737, H. Rept. 111-661, In
re Rangel, Dec. 2, 2010, p __.
Fines imposed by the House are separate and distinct from those
for which a Member might be liable under Federal law.
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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 Representative. 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. Members have also been removed from
standing committees amid allegations of ethical misconduct. 109-2,
June 16, 2006, p 11618.
Committee Participation; Committee Chair
The chair of a committee of the House may be subjected to a
variety of disciplinary measures for misconduct in that capacity as
chair. In one instance, a party caucus removed a Member from his
position as chair 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 chair's authority to
appoint special subcommittees or transfer authority from the chair to
the membership and the subcommittee chairs. Deschler Ch 12
Sec. Sec. 12.3, 12.4. The House, through the adoption of a resolution,
may restrict the power of the chair 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 chair
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. 105-2, H. Res. 431, May 14,
1998, p 9276. For examples of similar resolutions alleging abuse of
the powers of a committee chair offered as questions of the privileges
of the House, see 108-1, July 18, 2003, p 18698 and 110-1, Jan. 24,
2007, p 2139.
Rule 25 of the rules of the Republican Conference requires the
chair 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
chair 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,
112th Cong. Rules 48 through 51 of the rules of the Democratic Caucus
impose similar step-
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aside requirements on its chairs or ranking minority members. Rules of
the Democratic Caucus, 112th Cong.
Under clause 10 of rule XXIII, 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 such individual is a member.
Voting by a Member Convicted of Certain Crimes
Under clause 10 of rule XXIII, 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 innocence or until reelection to
the House after the date of such conviction.
Sec. 27 . Letter of Reproval
A letter of reproval is a sanction the Committee on Ethics may
impose by majority vote. Rule 24(c), Rules of the Committee on Ethics,
112th 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.