[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 9. In General; House as Judge of Qualifications]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 743-756]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 9. In General; House as Judge of Qualifications


    The Constitution requires three standing qualifications of 
Members,(12) mandates that they swear to an oath to uphold 
the Constitution,(13) and prohibits them from holding 
incompatible offices.(14) The House is constituted the sole 
judge of the qualifications and disqualifications of its 
Members.(15)
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12. Art. I, Sec. 2, clause 2.
13. Art. VI, clause 3.
14. Art. I, Sec. 6, clause 2.
15. Art. I, Sec. 5, clause 1. See Sevilla v Elizalde, 112 F2d 29, 38 
        (D.C. Cir. 1940) (determination of qualifications solely for 
        legislature); Application of James, 241 F Supp 858, 860 (D.N.Y. 
        1965) (no jurisdiction in federal courts to pass on 
        qualifications and legality of Representative); Keogh v Horner, 
        8 F Supp 933, 935 (D.Ill. 1934) (supreme power of Congress over 
        qualifications and legality of elections). Compare Powell v 
        McCormack, 395 U.S. 486 (1969) for limitations on the power of 
        the House to exclude a Member for qualifications not specified 
        in the Constitution (see Ch. 12, infra).
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    Alleged failure to meet qualifications is raised, usually by 
another Member-elect, before the House rises en masse to take the oath 
of office.(16) If a challenge is made, the Speaker requests 
the challenged Member-elect to stand aside. The Member-elect whose 
qualifications are in doubt may then be authorized to take the oath of 
office pursuant to a resolution so providing, which resolution may 
either declare him entitled to the seat, or refer the question of his 
final right to committee.(17) The House may also refuse to 
permit him to take the oath, and may refer the question of his 
qualifications and his right to take the oath to 
committee.(18)
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16. See Sec. 9.1, infra.
17. Under the House rules, the Committee on House Administration, which 
        assumed the functions of the former Committee on the Election 
        of President, Vice President, and Representatives in Congress, 
        has jurisdiction over the qualifications of Members. House 
        Rules and Manual Sec. Sec. 693, 694 (1973).
18. For an instance where the taking of oath was deferred for Members-
        elect whose qualifications were challenged, see Sec. 9.2, 
        infra.
            The temporary deprivation to a state of its equal 
        representation in Congress when a Member-elect is refused 
        immediate or final right to a seat is a necessary consequence 
        of Congress' exercise of its constitutional power to judge the 
        qualifications, returns, and elections of its Members. Barry v 
        ex rel. Cunningham, 279 U.S. 615 (1929).
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    If the House finds that a Member-elect has not met the quali

[[Page 744]]

fications for membership, or has failed to remove disqualifications, a 
new election must be held. An opposing candidate with the next highest 
number of votes cannot claim the right to the seat.(19)
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19. See 6 Cannon's Precedents Sec. Sec. 58, 59; 1 Hinds' Precedents 
        Sec. Sec. 323, 326, 450, 463, 469.
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    Congress and the courts have uniformly rejected the idea that the 
individual states could require qualifications for Representatives 
above and beyond those enumerated in the Constitution.(20) 
The

[[Page 745]]

states have regulatory powers over federal elections, but they may not 
determine the qualifications for election to the office.(1) 
Likewise, the qualifications and disqualifications of Delegates and 
Resident Commissioners are specified and judged under the sole 
jurisdiction of Congress itself.(2)
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20. For the congressional determination that states lack power over the 
        qualifications of Representatives, see 1 Hinds' Precedents 
        Sec. Sec. 414-416, 632.
            See also, for lack of state power to add or determine 
        qualifications, Richardson v Hare, 381 Mich. 304, 160 N.W. 2d 
        883 (1968) and Danielson v Fitzsimons, 232 Minn. 149, 44 N.W. 
        2d 484 (1950).
            Where a state court denied a candidate's eligibility for a 
        congressional seat, and a federal court had affirmed the 
        eligibility of another candidate identically situated, Supreme 
        Court Justice Black, sitting in Chambers, granted interim 
        relief. See Florida ex rel. Davis v Adams, 238 So. 2d 415 (Flat 
        1970), stay granted, 400 U.S. 1203 (1970) and Stack v Adams, 
        315 F Supp 1295 (N.D. Fla. 1970).
            State attempts to require a candidate to be a resident of 
        the district where he sought a congressional seat have been 
        invalidated. Exon v Tiemann, 279 F Supp 609 (Neb. 1968); State 
        ex rel. Chavez v Evans, 79 N.M. 578, 446 P.2d 445 (1968); 
        Hellman v Collier, 217 Md. 93, 141 A.2d 908 (1958).
            Where a candidate's affidavit stated he met all 
        qualifications, whether or not he was a ``sojourner'' was for 
        Congress and not for the courts to decide. Chavez v Evans, 79 
        N.M. 578, 446 P.2d 445 (1968).
            Similarly, states cannot render ineligible for 
        congressional seats incumbents of state elective offices, State 
        ex rel. Pickrell, 92 Ariz. 243, 375 P.2d 728 (1962), or state 
        governors, State ex rel. Johnson v Crane, 197 P.2d 864 (Wyo. 
        1948), or state judges, Ekwell v Stadelman, 146 Or. 439, 30 
        P.2d 1037 (1934), Stockland v McFarland, 56 Ariz. 138, 106 P.2d 
        328 (1940).
            States cannot add qualifications requiring affirmations of 
        loyalty, such as requiring affidavits showing lack of intent to 
        overthrow the government, Shub v Simpson, 76 A.2d 332 (Md. 
        1950), appeal dism'd, 340 U.S. 881 (1950); nor can they bar a 
        candidate for openly espousing international communism and 
        leading the American Communist Party. In re O'Connor, 17 
        N.Y.S.2d 758, 173 Misc. 419 (1940).
            The states have attempted to regulate primaries in such a 
        manner as to set qualifications for election to a federal 
        office. However, a state cannot independently render a losing 
        candidate in a primary ineligible for election. See State ex 
        rel. Sundfor v Thorson, 72 N.D. 246, 6 N.W. 2d 89 (1942).
            In general, any special or unusual conditions mandated by a 
        state act to regulate federal elections are invalid, insofar as 
        they directly or indirectly add to qualifications. State v 
        Russell, 10 Ohio S. & C.P. Dec. 225 (1900).
 1. Where state statutes have purported only to regulate elections, and 
        not to set qualifications, they have been permitted. Thus, an 
        Illinois statute requiring petitions signed by a certain number 
        of voters, from a certain number of counties, did not violate 
        the exclusiveness of constitutional qualifications. MacDougall 
        v Green, 335 U.S. 281 (1948).
            A state may require a five percent filing fee of a 
        candidate without adding to qualifications. Fowler v Adams, 315 
        F Supp 592 (Flat 1970), stay granted, 400 U.S. 1205 (J. Black 
        in Chambers) (1970), appeal dism'd, 400 U.S. 986 (1970); but 
        see Dillon v Fiorina, 340 F Supp 729 (N.M. 1972), where a six 
        percent filing fee for a Senatorial candidate was ruled 
        unconstitutional.
            A state has the power to require each candidate to appoint 
        a campaign treasurer. State v McGucken, 244 Md. 70. 222 A.2d 
        693 (1966).
 2. See Sec. 3, supra, for the qualifications of Delegates and Resident 
        Commissioners and for the method of determining those 
        qualifications.
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    One important issue relating to the qualifications and 
disqualifications of Members remains unresolved in part, although 
clarified by the Supreme Court in 1969. That question concerns the 
power of the House to exclude Members-elect for other than failure to 
meet the express constitutional qualifications, and the right of the 
House to add requirements in the nature of 
qualifications.(3) In the case of Powell v 
McCormack,(4) the Supreme Court held that the qualifications 
of age, citizenship, and state inhabitancy were exclusive and that the 
House could not exclude a Member-elect for allegedly improper conduct 
while a Member of past Congresses.(5)
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 3. For lengthy historical debate on the power of Congress to add 
        qualifications, see 1 Hinds' Precedents Sec. Sec. 414, 415, 
        443, 449, 451, 457, 458, 469, 478, 481, 484. For more recent 
        debate on the subject, relating to the attempt to exclude 
        Member-elect Adam Clayton Powell from Congress, see 
        Sec. Sec. 9.3, 9.4, infra.
            For debate in the Senate on the power of Congress to add 
        qualifications, see Sec. Sec. 9.5, 9.6, infra. See also Hupman, 
        Senate Election, Expulsion and Censure Cases from 1789 to 1972, 
        S. Doc. No. 92-7, 92d Cong. 1st Sess. (1972).
 4. 395 U.S. 486 (1969).
 5. See 395 U.S. 486, 489-493.
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    The court based its decision on the historical developments in the

[[Page 746]]

original Constitutional Convention and the intent of the framers of the 
Constitution to prescribe exclusive qualifications and to limit the 
House to judging the presence or absence of those standing 
requirements.(6) The decision apparently precludes the 
practice of the House or Senate, followed on numerous occasions during 
the 19th and 20th centuries, of excluding Members-elect for prior 
criminal, immoral, or disloyal conduct.(7) The court upheld 
in Powell the interest of state voters in being represented by the 
person of their choice, regardless of congressional dislike for the 
Member's-elect moral, political, or religious activities.(8)
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 6. 395 U.S. 486, 518-547. The court drew upon the practice of the 
        English and colonial parliaments, the debates of the 
        Constitutional Convention, the debates of the ratifying 
        conventions, and Hamilton and Madison's comments in the 
        Federalist Papers (see, in particular, Federalist No. 60).
 7. For exclusions by the House, see 1 Hinds' Precedents Sec. 449 
        (1868, Civil War disloyalty); Sec. 451 (1862, Civil War 
        disloyalty); Sec. 459 (1868, Civil War disloyalty); Sec. 620 
        (1869, Civil War disloyalty); Sec. 464 (1870, ``infamous 
        character'', selling appointments to West Point); Sec. 473 
        (1882, practice of polygamy by Delegate-elect); Sec. Sec. 474-
        480 (1900, practice and conviction of polygamy); 6 Cannon's 
        Precedents Sec. Sec. 56-59 (1919, acts of disloyalty 
        constituting criminal conduct).
            The Senate has excluded one Senator-elect for disloyalty 
        (see 1 Hinds' Precedents Sec. 457 [1867]), but seated a 
        Senator-elect accused of polygamy (see 1 Hinds' Precedents 
        Sec. 483 [1907]). For the two attempts in the Senate since 1936 
        to exclude Senators-elect for failure to meet other than the 
        constitutional qualifications, see Sec. 9.5, infra (failure to 
        muster two-thirds majority) and Sec. 9.6, infra (Senator-elect 
        died while case pending).
            In another instance, a Senator whose character 
        qualifications were challenged by petition was held entitled to 
        his seat without discussion in the Senate (see 81 Cong. Rec. 
        5633, 75th Cong. 1st Sess., June 14, 1937).
 8. 395 U.S. 486, 547-548. As noted in the United States Constitution 
        Annotated, Library of Congress, S. Doc. No. 92-82, 92d Cong. 2d 
        Sess. (1972), the reasoning of the court in Powell may be 
        analogized to other cases holding that voters have the right to 
        cast a ballot for the person of their choice and the right to 
        have their ballot counted at undiluted strength. See Ex parte 
        Yarborough, 110 U.S. 651 (1884); United States v Classic, 313 
        U.S. 299 (1941); Wesberry v Sanders, 376 U.S. 1 (1964); 
        Williams v Rhodes, 393 U.S. 23 (1969).
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    The Powell case did not discuss, however, other constitutional 
provisions which may give rise to disqualifications, such as the 
requirement to swear to an oath and the requirement of loyalty after 
once

[[Page 747]]

having taken an oath.(9) The constitutional prohibition 
against holding incompatible offices may disqualify a Member or Member-
elect,(10) and a person impeached by Congress may be 
disqualified from again holding an office of honor, trust, or profit 
under the United States.(11)
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 9. These issues are analyzed in Sec. 12, infra. Unwillingness or lack 
        of mental capacity to take the oath could conceivably act as 
        disqualifications.
10. See Sec. 13 (incompatible offices) and Sec. 14 (military service), 
        infra.
11. U.S. Const. art. I, Sec. 3, clause 7.
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                            Cross References
Challenging the right to be sworn, see Ch. 2, supra.
Punishment, censure, or expulsion, see Ch. 12, infra.
House as judge of elections, see Ch. 9, infra.
Procedure in challenging qualifications before rules adoption, see Chs. 
    1 and 2, supra.

                         Collateral References
Curtis, Power of the House of Representatives to Judge the 
    Qualifications of Its Members, 45 Tex. L. Rev. 1199 and 1205 
    (1967).
Dempsey, Control by Congress Over the Seating and Disciplining of 
    Members, Ph. D. Dissertation, Univ. of Michigan (1956) (on file 
    with Library of Congress).
Dionisopoulos, A Commentary on the Constitutional Issues in the Powell 
    and Related Cases, 17 Jour. Pub. Law 103 (1968).
Federalist No. 60 (Hamilton), Modern Library (1937).
House Rules and Manual Sec. Sec. 46-51 (comment to U.S. Const. art. I, 
    Sec. 5, clause 1) (1973).
House Rules and Manual Sec. Sec. 9-13 (comment to U.S. Const. art. I, 
    Sec. 2, clause 2) (1973).
House Rules and Manual Sec. 35 (1973) (comment to U.S. Const. art. I, 
    Sec. 3, clause 3, Senate qualifications).
McGuire, The Right of the Senate to Exclude or Expel a Senator, 15 
    Georgetown L. Rev. 382 (1927).
Note, The Power of a House of Congress to Judge the Qualifications of 
    Its Members, 81 Harv. L. Rev. 673 (1968).
Schwartz, A Commentary on the Constitution of the United States, p. 97, 
    McMillan Co. (N.Y. 1963).
Story, Commentaries on the Constitution of the United States, 
    Sec. Sec. 616-624, Da Capo Press (N.Y. republication 1970).
United States Constitution Annotated, Library of Congress, S. Doc. No. 
    92-82, 92d Cong. 2d Sess. (1972).
Weeks, Adam Clayton Powell and the Supreme Court, Univ. Press of 
    Cambridge, Mass. (Boston 1971).
Wickersham, The Right of the Senate to Determine the Qualifications of 
    Its Members, S. Doc. No. 4, 70th Cong. 1st Sess. (1927), reprinted 
    at 88 Cong. Rec. 3047-50, 77th Cong. 2d 
    Sess.                          -------------------

Challenging Procedure

Sec. 9.1 Challenges by one Member-elect to the qualifications of 
    another are usually presented prior to the swearing in of Members-
    elect en

[[Page 748]]

    masse, whereupon the Speaker requests the challenged Member-elect 
    to stand aside.

    On Jan. 10, 1967, Member-elect Lionel Van Deerlin, of California, 
stated a challenge to the right of Member-elect Adam C. Powell, of New 
York, to be sworn, based on charges allegedly disqualifying him to be a 
Member of the House. The Speaker requested Mr. Powell to stand aside 
while the oath was administered to the other Members-elect: 
(12)
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12. 113 Cong. Rec. 14, 90th Cong. 1st Sess. For the Senate practice, 
        see Sec. Sec. 9.5, 9.6, infra.
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        The Speaker: (13) According to the precedent, the 
    Chair will swear in all Members of the House at this time.
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13. John W. McCormack (Mass.).
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        If the Members will rise, the Chair will now administer the 
    oath of office.

                      Objection to Administration of Oath

        Mr. Van Deerlin: Mr. Speaker.
        The Speaker: For what purpose does the gentleman from 
    California rise?
        Mr. Van Deerlin: Mr. Speaker, upon my responsibility as a 
    Member-elect of the 90th Congress, I object to the oath being 
    administered at this time to the gentleman from New York [Mr. 
    Powell]. I base this upon facts and statements which I consider 
    reliable. I intend at the proper time to offer a resolution 
    providing that the question of eligibility of Mr. Powell to a seat 
    in this House be referred to a special committee----
        The Speaker: Does the gentleman demand that the gentleman from 
    New York step aside?
        Mr. Van Deerlin: Yes, Mr. Speaker.
        The Speaker: The gentleman has performed his duties and has 
    taken the action he desires to take under the rule. The gentleman 
    from New York [Mr. Powell] will be requested to be seated during 
    the further proceedings.

Challenge to Qualifications by Citizen

Sec. 9.2 A challenge to the qualifications of a Representative-elect 
    may be instituted by the filing of a memorial or petition by a 
    citizen.

    On Mar. 11, 1933,(14) Speaker Henry T. Rainey, of 
Illinois, laid before the House a letter from the Clerk transmitting a 
memorial and accompanying letters challenging the citizenship 
qualifications of Henry Ellenbogen, Representative-elect from 
Pennsylvania.
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14. 77 Cong. Rec. 239, 73d Cong. 1st Sess.
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    Mr. Ellenbogen did not take the oath until Jan. 3, 1934, and was 
not declared entitled to his seat until the adoption of a resolution to 
that effect on June 15, 1934.(15)
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15. 78 Cong. Rec. 12193, 73d Cong. 2d Sess. See Sec. 10.1, infra, for 
        further discussion of Mr. Ellenbogen's qualifications for a 
        seat.
            For instances of petitions submitted to the Senate by 
        private citizens, challenging the qualifications of Senators-
        elect, see 81 Cong. Rec. 5633, 75th Cong. 1st Sess., June 14, 
        1937; 88 Cong. Rec. 2077, 2078, 77th Cong. 2d Sess., Mar. 9, 
        1942; and 93 Cong. Rec. 91-93, 80th Cong. 1st Sess., Jan. 4, 
        1947.

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[[Page 749]]

Power of House to Determine Qualifications

Sec. 9.3 The House decided in the 90th Congress that it could exclude, 
    by a majority vote, a duly qualified and certified Member-elect for 
    improper conduct while a former Member of the House.(16)
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16. The action of the House in excluding the Member-elect was ruled 
        unconstitutional by the Supreme Court in Powell v McCormack, 
        395 U.S. 486 (1969).
            For the contrary views of two Members of Congress on the 
        power of the House to exclude Mr. Powell, see Curtis, Power of 
        the House of Representatives to Judge the Qualifications of Its 
        Members, 45 Tex. L. Rev. 1199 (1967) and Eckhardt, The Adam 
        Clayton Powell Case, 45 Tex. L. Rev. 1205 (1967).
            For a prior instance (1919) where a Member-elect with 
        unquestioned credentials was denied a seat for other than 
        failure to meet the requirements of age, citizenship, or 
        inhabitancy, see 6 Cannon's Precedents Sec. Sec. 56-58.
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    On Jan. 10, 1967, the convening day of the 90th Congress, a 
challenge was made to the right to be sworn of Mr. Adam C. Powell, of 
New York, whose credentials had been submitted to the House, and whose 
qualifications of age, citizenship, and inhabitancy had been satisfied. 
He stepped aside as the oath was administered to the other Members-
elect en masse.(17) The challenge to Mr. Powell's right to a 
seat was based on his alleged misconduct in a prior Congress as a 
Member of the House and Chairman of a committee, and on his avoidance 
of state court processes.
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17. 113 Cong. Rec. 14, 90th Cong. 1st Sess.
            Although some Members challenged the fulfillment by Mr. 
        Powell of the inhabitancy qualification, that ground for 
        exclusion was not considered by the House or the special 
        committee established to investigate his right to a seat. See 
        113 Cong. Rec. 4772, 90th Cong. 1st Sess., Feb. 28, 1967, and 
        the resolution offered on Mar. 1, 1967, 113 Cong. Rec. 4993, 
        90th Cong. 1st Sess.
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    House Resolution No. 1 was then offered, which would have permitted 
Mr. Powell to take the oath but referred the question of his final 
right to a seat to a special committee. The House rejected the previous 
question on House Resolution No. 1 and adopted a substitute amendment 
referring both Mr. Powell's right to be sworn and his final right to

[[Page 750]]

be seated to a special committee: (18)
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18. 113 Cong. Rec. 14-26, 90th Cong. 1st Sess.
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        Mr. Gerald R. Ford [of Michigan]: Mr. Speaker, I offer a 
    substitute for House Resolution 1.
        The Clerk read as follows:

            Amendment offered by Mr. Gerald R. Ford as a substitute for 
        House Resolution 1: Strike out all after the resolving clause 
        and insert the following:
            ``Resolved, That the question of the right of Adam Clayton 
        Powell to be sworn in as a Representative from the State of New 
        York in the Ninetieth Congress, as well as his final right to a 
        seat therein as such Representative, be referred to a special 
        committee of nine Members of the House to be appointed by the 
        Speaker, four of whom shall be Members of the minority party 
        appointed after consultation with the minority leader. Until 
        such committee shall report upon and the House shall decide 
        such question and right, the said Adam Clayton Powell shall not 
        be sworn in or permitted to occupy a seat in this House.
            ``For the purpose of carrying out this resolution the 
        committee, or any subcommittee thereof authorized by the 
        committee to hold hearings, is authorized to sit and act during 
        the present Congress at such times and places within the United 
        States, including any Commonwealth or possession thereof, or 
        elsewhere, whether the House is in session, has recessed, or 
        has adjourned, to hold such hearings, and to require, by 
        subpoena or otherwise, the attendance and testimony of such 
        witnesses and the production of such books, records, 
        correspondence, memorandums, papers, and documents, as it deems 
        necessary; except that neither the committee nor any 
        subcommittee thereof may sit while the House is meeting unless 
        special leave to sit shall have been obtained from the House. 
        Subpoenas may be issued under the signature of the chairman of 
        the committee or any member of the committee designated by him, 
        and may be served by any person designated by such chairman or 
        member.
            ``Until such question and right have been decided, the said 
        Adam Clayton Powell shall be entitled to all the pay, 
        allowances, and emoluments authorized for Members of the House.
            ``The committee shall report to the House within five weeks 
        after the members of the committee are appointed the results of 
        its investigation and study, together with such recommendations 
        as it deems advisable. Any such report which is made when the 
        House is not in session shall be filed with the Clerk of the 
        House.''

    On Mar. 1, 1967, the special committee on the right of Mr. Powell 
to his seat offered House Resolution No. 278, which declared Mr. Powell 
entitled to his seat on the ground that he met all constitutional 
qualifications for membership, but which imposed various penalties for 
congressional misconduct: (19)
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19. 113 Cong. Rec. 4997, 90th Cong. 1st Sess.
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        Mr. [Emanuel] Celler [of New York]: Mr. Speaker, pursuant to 
    House Resolution 1, I call up for immediate consideration the 
    following privileged resolution, House Resolution 278, which is at 
    the Clerk's desk.
        The Clerk read the resolution, as follows:

[[Page 751]]

            Whereas,
            The Select Committee appointed pursuant to H. Res. 1 (90th 
        Congress) has reached the following conclusions:
            First, Adam Clayton Powell possesses the requisite 
        qualifications of age, citizenship and inhabitancy for 
        membership in the House of Representatives and holds a 
        Certificate of Election from the State of New York.
            Second, Adam Clayton Powell has repeatedly ignored the 
        processes and authority of the courts in the State of New York 
        in legal proceedings pending therein to which he is a party, 
        and his contumacious conduct towards the court of that State 
        has caused him on several occasions to be adjudicated in 
        contempt thereof, thereby reflecting discredit upon and 
        bringing into disrepute the House of Representatives and its 
        Members.
            Third, as a Member of this House, Adam Clayton Powell 
        improperly maintained on his clerk-hire payroll Y. Marjorie 
        Flores (Mrs. Adam C. Powell) from August 14, 1964, to December 
        31, 1966, during which period either she performed no official 
        duties whatever or such duties were not performed in 
        Washington, D.C. or the State of New York as required by law. . 
        . .
            Fourth, as Chairman of the Committee on Education and 
        Labor, Adam Clayton Powell permitted and participated in 
        improper expenditures of government funds for private purposes.
            Fifth, the refusal of Adam Clayton Powell to cooperate with 
        the Select Committee and the Special Subcommittee on Contracts 
        of the House Administration Committee in their lawful inquiries 
        authorized by the House of Representatives was contemptuous and 
        was conduct unworthy of a Member; Now, therefore, be it
            Resolved,
            1. That the Speaker administer the oath of office to the 
        said Adam Clayton Powell, Member-elect from the Eighteenth 
        District of the State of New York.
            2. That upon taking the oath as a Member of the 90th 
        Congress the said Adam Clayton Powell be brought to the bar of 
        the House in the custody of the Sergeant-at-Arms of the House 
        and be there publicly censured by the Speaker in the name of 
        the House.
            3. That Adam Clayton Powell, as punishment, pay to the 
        Clerk of the House to be disposed of by him according to law, 
        Forty Thousand Dollars ($40,000.00). The Sergeant-at-Arms of 
        the House is directed to deduct One Thousand Dollars 
        ($1,000.00) per month from the salary otherwise due the said 
        Adam Clayton Powell and pay the same to said Clerk, said 
        deductions to continue while any salary is due the said Adam 
        Clayton Powell as a Member of the House of Representatives 
        until said Forty Thousand Dollars ($40,000.00) is fully paid. 
        Said sums received by the Clerk shall offset to the extent 
        thereof any liability of the said Adam Clayton Powell to the 
        United States of America with respect to the matters referred 
        to in the above paragraphs Third and Fourth of the preamble to 
        this Resolution.
            4. That the seniority of the said Adam Clayton Powell in 
        the House of Representatives commence as of the date he takes 
        the oath as a Member of the 90th Congress.
            5. That if the said Adam Clayton Powell does not present 
        himself to take the oath of office on or before March 13, 1967, 
        the seat of the Eighteenth District of the State of New York 
        shall be deemed vacant and the Speaker shall notify the 
        Governor of the State of New York of the existing vacancy.

[[Page 752]]

    After debate,(20) the House refused to order the 
previous question on the original resolution and agreed to an amendment 
in the nature of a substitute, stating the abuses Mr. Powell had 
committed, and excluding him from membership in the House: 
(1)
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20. 113 Cong. Rec. 4997-5039, 90th Cong. 1st Sess., Mar. 1, 1967. For a 
        brief prepared by the Library of Congress buttressing the 
        authority of Congress to exclude Members-elect for misconduct, 
        see id. at pp. 5008-10.
 1. Id. at p. 5038. The text of the substitute resolution appears id. 
        at p. 5020.
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        Mr. [Thomas B.] Curts [of Missouri]: Mr. Speaker, I offer an 
    amendment as a substitute for the resolution offered by the 
    Committee.
        The Clerk read as follows:

            Amendment offered by Mr. Curtis as a substitute for House 
        Resolution 278:
            Resolved, That said Adam Clayton Powell, Member-elect from 
        the 18th District of the State of New York, be and the same 
        hereby is excluded from membership in the 90th Congress and 
        that the Speaker shall notify the Governor of the State of New 
        York of the existing vacancy.

    While the amendment was pending, Speaker John W. McCormack, of 
Massachusetts, stated in response to a parliamentary inquiry that 
adoption of the resolution would require a majority vote:

        Mr. Celler: Mr. Speaker, a parliamentary inquiry.
        Mr. Curtis: Mr. Speaker, I yield to the gentleman for the 
    purpose of making a parliamentary inquiry.
        The Speaker: The gentleman will state his parliamentary 
    inquiry.
        Mr. Celler: Anticipating that the Member-elect from the 18th 
    District of New York satisfies the Constitution, and a question is 
    raised in this resolution, would the resolution offered by the 
    gentleman from Missouri require a two-thirds vote, in the sense 
    that it might amount to an expulsion?
        The Speaker: In response to the parliamentary inquiry, on the 
    amendment of the gentleman from Missouri [Mr. Curtis], action by a 
    majority vote would be in accordance with the rules.

    Speaker McCormack also overruled a point of order against the 
resolution based on the theory that the resolution was beyond the power 
of the House to adopt:

        Mr. [Phillip] Burton of California: Mr. Speaker I raise a point 
    of order.
        The Speaker: The gentleman will state his point of order.
        Mr. Burton of California: In view of the fact that this 
    resolution, among other things, states that the Member from New 
    York is ineligible to serve in the other body, and therefore 
    clearly beyond our power to so vote; and in addition to that fact 
    it anticipates election results in the 18th District of New York, a 
    matter upon which we cannot judge at this time, I raise the point 
    of order that the resolution is an improper one for the House to 
    consider, and that it clearly exceeds our authority.
        The Speaker: The Chair will observe to the gentleman that if 
    the

[[Page 753]]

    point of order would be in order it would have been at a previous 
    stage in the proceedings, and the gentleman's point of order comes 
    too late.
        Mr. Burton of California: May I make a parliamentary inquiry, 
    Mr. Speaker?
        The Speaker: The gentleman will state the parliamentary 
    inquiry.
        Mr. Burton of California: Am I not correct in my statement that 
    under the resolution on which we are about to vote, the only clear 
    meaning of it would preclude the gentleman from New York from 
    serving in the other body.
        The Speaker: The Chair would state that that is not a 
    parliamentary inquiry. The Chair cannot pass upon that question.

    Following the adoption of the resolution as amended, the House 
agreed to the preamble to the resolution.

Sec. 9.4 A qualified Member-elect who had been duly elected to the 90th 
    Congress and who had been excluded by the House for improper 
    conduct while a former Member instituted a suit to enjoin the 
    Speaker, other Members, and House officers from enforcing the 
    resolution of exclusion.

    On Mar. 9, 1967, Speaker John W. McCormack, of Massachusetts, 
announced to the House that a suit had been instituted against him, and 
against officers and other Members of the House, in order to enjoin the 
enforcement of a resolution excluding Mr. Adam C. Powell, of New York, 
from House membership.(2) Mr. Powell's complaint sought a 
writ of mandamus directing the Speaker to administer him the oath of 
office as a Member of the 90th Congress.(3) As to the age, 
citizenship, and inhabitancy requirements of the Constitution, the 
complaint stated:
---------------------------------------------------------------------------
 2. 113 Cong. Rec. 6035, 90th Cong. 1st Sess.
 3. Subpenas to the Speaker and others, the complaint in the suit, and 
        application (with memorandum) for the convening of a three-
        judge federal court were inserted in the Record id. at pp. 
        6036-40.
---------------------------------------------------------------------------

        . . . These are the sole and only qualifications prescribed by 
    the Constitution for members of the House of Representatives, and 
    they cannot be altered, modified, expanded or changed by the 
    Congress of the United States. The House found that plaintiff Adam 
    Clayton Powell, Jr. possesses the requisite qualifications for 
    membership in the House (House Resolution No. 278 . . .) but 
    nonetheless voted to exclude him.(4)
---------------------------------------------------------------------------
 4. 113 Cong. Rec. 6037, 90th Cong. 1st Sess.
            Further briefs, memoranda, and the opinion of the United 
        States District Court Judge dismissing the complaint are 
        reprinted at 113 Cong. Rec. 8729-62, 90th Cong. 1st Sess., Apr. 
        10, 1967.

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[[Page 754]]

    On Jan. 3, 1969, the convening day of the 91st Congress, the House 
agreed to a resolution authorizing Speaker John W. McCormack, of 
Massachusetts, to administer the oath to Mr. Powell, but imposing 
various penalties against him.(5)
---------------------------------------------------------------------------
 5. 115 Cong. Rec. 33, 34, 91st Cong. 1st Sess. (see H. Res. 2). For 
        further discussion, see Ch. 12, infra.
---------------------------------------------------------------------------

    Parliamentarian's Note: The suit filed by Mr. Powell in the United 
States District Court for the District of Columbia eventually reached 
the United States Supreme Court, which held that the House could 
exclude a Member-elect only for failure to satisfy one of the 
qualifications mandated in the Constitution. The suit was still pending 
when Mr. Powell was sworn in at the commencement of the 91st 
Congress.(6)
---------------------------------------------------------------------------
 6. Powell v McCormack, 395 U.S. 486 (1969). The Court dismissed the 
        complaint as to the House Members named, since they were immune 
        from inquiry under the Speech and Debate Clause of the 
        Constitution. However, the presence of House officers as 
        defendants gave the Court jurisdiction to enter a declaratory 
        judgment against the House action. See Ch. 12, infra.
---------------------------------------------------------------------------

Senate Determinations as to Qualifications

Sec. 9.5 In the 77th Congress, the Senate failed to expel, by the 
    required two-thirds vote, a Senator whose qualifications had been 
    challenged by reason of election fraud and of conduct involving 
    moral turpitude.

    On Jan. 3, 1941, at the convening of the 77th Congress, Senator 
William Langer, of North Dakota, took the oath of office without 
prejudice, despite letters, protests, and affidavits from citizens of 
North Dakota recommending that he be denied a congressional seat 
because of campaign fraud and conduct involving moral 
turpitude.(7)
---------------------------------------------------------------------------
 7. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
            The petition challenging Senator Langer's qualifications 
        appears in the Record at 88 Cong. Rec. 2077, 77th Cong. 2d 
        Sess., Mar. 9, 1942.
---------------------------------------------------------------------------

    The final right of Senator Langer to his seat was not acted upon 
until Mar. 9, 1942, when the Committee on Privileges and Elections 
offered Senate Resolution No. 220:

        Resolved, That the case of William Langer does not fall within 
    the constitutional provisions for expulsion or any punishment by 
    two-thirds vote, because Senator Langer is neither charged with nor 
    proven to have committed disorderly behavior during his membership 
    in the Senate.
        Resolved, That William Langer is not entitled to be a Senator 
    of the United

[[Page 755]]

    States from the State of North Dakota.(8)
---------------------------------------------------------------------------
 8. 88 Cong. Rec. 2077, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

    Extensive debate, on the charges against Senator Langer, on the 
procedure to be followed by the Senate in determining his right to a 
seat, and on the authority of the Senate to deny him a seat for other 
than failure to meet express constitutional qualifications, consumed 
Mar. 9 through Mar. 27, 1942.(9)
---------------------------------------------------------------------------
 9. Id. at pp. 2077-105, 2165-79, 2239-62, 2328-44, 2382-406, 2472-94, 
        2630-52, 2699-720, 2759-67, 2768-79, 2791-806, 2842-63, 2914-
        23, 2959-78, 3038-65. For debate on the constitutional issues 
        and parliamentary precedents, see id. at pp. 2390-406. The 
        minority report of the Committee on Privileges and Elections, 
        contending that the Senate could only exclude for failure to 
        meet express constitutional qualifications, is set out id. at 
        pp. 2630-34.
---------------------------------------------------------------------------

    On Mar. 27, the Senate agreed to a resolution requiring a two-
thirds vote for expulsion of Senator Langer.(10) On the same 
day, the Senate failed to pass by a two-thirds vote the resolution to 
expel Senator Langer.(11)
---------------------------------------------------------------------------
10. Id. at p. 3064.
            The Senate had decided in 1907 that a two-thirds vote was 
        required to expel a Senator who had already taken the oath. 1 
        Hinds' Precedents Sec. Sec. 481-484.
11. 88 Cong. Rec. 3065, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 9.6 A Senator-elect whom members of the Senate sought to exclude 
    from the 80th Congress, for allegedly corrupt campaign practices, 
    died while his qualifications for a seat were still undetermined.

    On Jan. 3, 1947, at the convening of the first session of the 80th 
Congress, the right to be sworn of Theodore Bilbo, Senator-elect from 
Mississippi, was challenged. The challenge was made through Senate 
Resolution No. 1, which alleged Mr. Bilbo had engaged in corrupt and 
fraudulent campaign practices and had conspired to prevent the exercise 
of voting rights of certain citizens.(12) Extensive debate 
occurred on Jan. 3 and 4 in relation to the right of Mr. Bilbo to be 
sworn and in relation to the charges and petitions against 
him.(13) During the debate, the question was discussed as to 
whether Mr. Bilbo could be excluded from the Senate for his allegedly 
improper conduct, without violating the principle of the exclusivity of 
the constitutional qualifications.(14)
---------------------------------------------------------------------------
12. 93 Cong. Rec. 7, 80th Cong. 1st Sess.
13. Id. at pp. 7-33, Jan. 3, and at pp. 71-109, Jan. 4. The petition 
        submitted to the Senate by concerned private citizens which 
        challenged Mr. Bilbo's entitlement to a seat appears in the 
        Record id. at pp. 91-93.
14. Id. at pp. 14-19.

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[[Page 756]]

    The question of Mr. Bilbo's right to a seat, and his right to take 
the oath, were laid on the table pending his recovery from a medical 
operation.(15) Mr. Bilbo died on Aug. 21, 1947, without 
further action being taken by the Senate on his right to a 
seat.(16)
---------------------------------------------------------------------------
15. Id. at p. 109.
16. See the announcement of Nov. 17, 1947, 93 Cong. Rec. 10569, 80th 
        Cong. 1st Sess.
---------------------------------------------------------------------------

Qualifications of Senate Appointee

Sec. 9.7 The validity of an appointment to the Senate may be challenged 
    on the ground that the appointee does not meet the qualifications 
    required by state law.(17)
---------------------------------------------------------------------------
17. Under U.S. Const. amend. 17, a state legislature may empower the 
        state executive to make temporary appointments to the Senate in 
        the event of a vacancy, with the legislature setting 
        qualifications for appointees. However, in the case of a House 
        vacancy, an election must be held, with candidates possessing 
        the constitutional qualifications. See U.S. Const. art. I, 
        Sec. 2, clause 4.
---------------------------------------------------------------------------

    On Aug. 5, 1964,(18) Senator Everett M. Dirksen, of 
Illinois, challenged the validity of the appointment of Pierre 
Salinger, appointed to fill a vacancy in the Senate caused by the death 
of Senator Clair Engle, of California. Senator Dirksen's challenge was 
based on the fact that the California code required that an appointee 
by the governor must be an elector, and that an elector must be a 
resident for one year before the day of election. It was claimed that 
Mr. Salinger was not a resident of California for a period of one year 
prior to appointment.
---------------------------------------------------------------------------
18. 110 Cong. Rec. 18107-20, 88th Cong. 2d Sess.
---------------------------------------------------------------------------

    The Senate, after lengthy debate, agreed to a motion that the oath 
be administered to Mr. Salinger, and that his credentials be referred 
to the Committee on Rules and Administration.



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