[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 11. Conviction of Crime; Past Conduct]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 763-769]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 11. Conviction of Crime; Past Conduct

    Although the Senate or the House may expel a seated Member for 
disorderly conduct committed during his term,(8) Congress 
has no general authority to exclude a Member-elect solely for criminal 
or immoral conduct committed prior to the convening of the Congress to 
which elected.(9) Although the Senate and the House have 
affirmed their power

[[Page 764]]

to exclude for improper conduct on many occasions before 1936, and on 
several occasions since 1936,(10) the Supreme Court decided 
in 1969 that the House or the Senate was limited to determining whether 
a Member-elect had satisfied the standing qualifications of age, 
citizenship, and residency.(11)
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 8. U.S. Const. art. I, Sec. 5, clause 2. See, in general, Ch. 12, 
        infra.
 9. For a discussion of the limits on Congress to add qualifications to 
        those specified in the Constitution, see Sec. 9, supra. See 
        also House Rules and Manual Sec. Sec. 10-12 (comment to U.S. 
        Const. art. I, Sec. 2, clause 2, setting qualifications for 
        Members) (1973).
            For the views of constitutional commentators, see 
        Federalist No. 60 (Hamilton), Modern Library (1937); Story, 
        Commentaries on the Constitution of the United States, 
        Sec. Sec. 616-624, Da Capo Press (N.Y. repub. 1970); Schwartz, 
        A Commentary on the Constitution of the United States, p. 97, 
        McMillan Co. (N.Y. 1963); Dempsey, Control by Congress Over the 
        Seating and Disciplining of Members, Ph.D. dissertation, 
        University of Michigan (1956) (on file with Library of 
        Congress); Note, The Right of Congress to Exclude Its Members, 
        33 Va. L. Rev. 322 (1947); Note, The Power of the House of 
        Congress to Judge the Qualifications of Its Members, 81 Harv. 
        L. Rev. 673 (1968); Dionisopoulos, A Commentary on the 
        Constitutional Issues in the Powell and Related Cases, 17 
        Journal Public Law 103 (1968).
10. 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); Sec. 11.1, infra (1967, abuse 
        of power while past Member and committee chairman).
            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 deny seats to Senators-elect for prior improper conduct, see 
        Sec. Sec. 11.2, 11.3, infra. 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).
11. Powell v McCormack, 395 U.S. 486 (1969).
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    The Supreme Court case arose from the exclusion of a Member-elect 
(Adam Clayton Powell) in the 90th Congress for improper conduct as a 
Member of past Congresses.(12) The abuses charged against 
the Member-elect never became the subject of criminal conviction. The 
House decided not only that it could exclude for abuse of power while a 
past Congressman and past committee chairman, but also that it could 
exclude by a simple majority vote. In denying such congressional power, 
the Supreme Court stated that the qualifications of the Constitution 
were exclusive and that the Congress could not deny to constituents 
their choice of a Representative, even if the majority of the House 
found his past conduct so criminal or so immoral as to render him 
unsuited for membership.
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12. See Sec. 9.3, supra, for a complete synopsis of the House 
        proceedings leading to the vote on exclusion, and see Sec. 9.4, 
        supra, for a complete synopsis of the litigation by the 
        excluded Member against House Members and officers.
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    On two occasions since 1936, proceedings in the Senate have sought 
to deny seats to Senators-elect for immoral or criminal activity 
committed prior to the convening of Congress.(13) Both 
attempts were unsuccessful.
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13. See Sec. Sec. 11.2, 11.3, infra.

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[[Page 765]]

    Congress may have the power to exclude a Member-elect for improper 
conduct when such conduct relates to campaign 
activities.(14) Congress is the sole judge of the elections 
of its Members,(15) and regulation of elections is a subject 
of various federal statutes. If the House found that a Member had 
conducted such a corrupt or fraudulent campaign as to render the 
election invalid, the House could deny a seat to such Member-elect, not 
for disqualifications but for failure to be duly 
elected.(16)
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14. See Ch. 12, infra.
15. U.S. Const. art. I, Sec. 5, clause 1.
16. See Ch. 8, infra, for elections and election campaigns and Ch. 9, 
        infra, for election contests.
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    Generally, any state constitution (17) or any statute 
(18) which disqualifies a congressional candidate for 
criminal conviction is invalid and does not operate to disqualify the 
candidate for a congressional seat.
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17. See Sec. 11.4, infra, for an occasion where the House declined to 
        exclude a Member-elect whose citizenship had been challenged, 
        since he had been convicted of a felony and his state's 
        constitution stripped of citizenship persons convicted of 
        felonies.
18. The Supreme Court held in Burton v U.S., 202 U.S. 344 (1906) that 
        although a statute barred a Congressman convicted of accepting 
        a bribe from holding office, a judgment of conviction did not 
        automatically expel him or compel Congress to expel him.
            A state cannot by statute prevent a candidate from seeking 
        office by virtue of his having been convicted of a felony. 
        Application of Ferguson, 294 N.Y.S. 2d 174, 57 Misc. 2d 1041 
        (1968).
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                            Cross References
Conduct, punishment, censure, and expulsion, see Ch. 12, infra.
Charges against Member as raising personal privilege, see Ch. 11, 
    infra.
Improper campaign practices, see Ch. 8, infra.
Impeachment and improper conduct, see Ch. 14, infra.
Resignations after conviction of crime, see Ch. 37, infra.
Challenging the right to be sworn, based on improper conduct, see Ch. 
    2, supra.
Demotions in seniority for improper conduct, see Sec. 2, supra.

                          Collateral Reference
Sense of the House, Member's actions, convictions of certain crimes, H. 
    Rept. No. 92-1039, 92d Cong. 1st Sess. 
    (1972).                          -------------------

Exclusion for Improper Conduct

Sec. 11.1 The House excluded in the 90th Congress a Member-elect for 
    avoidance of state court process and abuse of his congressional 
    position while a Member of past Congresses.(19)
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19. For a complete synopsis of the proceedings leading to Mr. Powell's 
        exclusion, and of the litigation filed by him against the 
        House, see Sec. Sec. 9.3, 9.4, supra.

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[[Page 766]]

    On Mar. 1, 1967, the House excluded Member-elect Adam C. Powell, of 
New York, through passage of House Resolution No. 278 by a majority 
vote. The preamble of the resolution read in part as follows:

        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. . . .(20)
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20. 113 Cong. Rec. 4997, 90th Cong. 1st Sess. (original resolution 
        introduced by the special committee on the right of Mr. Powell 
        to his seat). The House retained the preamble and adopted an 
        amendment, text id. at p. 5020, which excluded Mr. Powell from 
        the House.
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Exclusion of Senator for Improper Conduct

Sec. 11.2 A Senator-elect whom Members of the Senate sought to exclude 
    from the 80th Congress, for corrupt campaign practices and past 
    abuse of congressional office, died while his qualifications for a 
    seat were still undetermined.

    On Jan. 4, 1947, at the convening of the 80th Congress, the right 
to be sworn of Mr. Theodore Bilbo, of Mississippi, was laid on the 
table and not taken up again due to his intervening 
death.(1)
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 1. 93 Cong. Rec. 109, 80th Cong. 1st Sess.
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    The right to be sworn of Mr. Bilbo had been challenged through 
Senate Resolution No. 1, whose preamble read as follows:

        Whereas the Special Committee To Investigate Senatorial 
    Campaign Expenditures, 1946, has conducted an in

[[Page 767]]

    vestigation into the senatorial election in Mississippi in 1946, 
    which investigation indicates that Theodore G. Bilbo may be guilty 
    of violating the Constitution of the United States, the statutes of 
    the United States, and his oath of office as a Senator of the 
    United States in that he is alleged to have conspired to prevent 
    citizens of the United States from exercising their constitutional 
    rights to participate in the said election; and that he is alleged 
    to have committed violations of Public Law 252, Seventy-sixth 
    Congress, commonly known as the Hatch Act; and
        Whereas the Special Committee To Investigate the National 
    Defense Program has completed an inquiry into certain transactions 
    between Theodore G. Bilbo and various war contractors and has found 
    officially that the said Bilbo, ``in return for the aid he had 
    given certain war contractors and others before Federal 
    departments, solicited and received political contributions, 
    accepted personal compensation, gifts, and services, and solicited 
    and accepted substantial amounts of money for a personal charity 
    administered solely by him'' . . . and . . . ``that by these 
    transactions Senator Bilbo misused his high office and violated 
    certain Federal statutes''; and
        Whereas the evidence adduced before the said committees 
    indicates that the credentials for a seat in the Senate presented 
    by the said Theodore G. Bilbo are tainted with fraud and 
    corruption; and that the seating of the said Bilbo would be 
    contrary to sound public policy, harmful to the dignity and honor 
    of the Senate, dangerous to the perpetuation of free Government and 
    the preservation of our constitutional liberties. . . 
    .(2)
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 2. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
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Sec. 11.3 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, despite 
charges from the citizens of his state recommending he be denied a 
congressional seat because of campaign fraud and past conduct involving 
moral turpitude.(3)
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 3. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
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    The petition against Senator Langer charged: control of election 
machinery; casting of illegal election ballots; destruction of legal 
election ballots; fraudulent campaign advertising; conspiracy to avoid 
federal law; perjury; bribery; fraud; promises of political 
favors.(4)
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 4. 88 Cong. Rec. 2077-80, 77th Cong. 2d Sess., Mar. 9, 1942.
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    After determining that a two-thirds vote was necessary for 
expulsion,(5) the Senate failed to expel Senator 
Langer.(6)
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 5.  88 Cong. Rec. 3064, 77th Cong. 2d Sess., Mar. 27, 1942.
 6. Id. at p. 3065.

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[[Page 768]]

Criminal Conviction

Sec. 11.4 Where the right to a seat of a Representative-elect was 
    challenged on the ground that he had forfeited his rights as a 
    citizen by reason of a felony conviction, the House declined to 
    exclude him.(7)
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 7. On several occasions, since 1921, Members of the House have been 
        convicted of crimes without House disciplinary action being 
        taken. See the remarks of Mr. John Conyers, Jr. (Mich.) 113 
        Cong. Rec. 5007, 90th Cong. 1st Sess., Mar. 1, 1967.
            On one occasion, a charge that a Member had been convicted 
        of playing poker prior to his becoming a Member was held not to 
        involve his representative capacity. See 78 Cong. Rec. 2464, 
        73d Cong. 2d Sess., Feb. 13, 1934.
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    On Mar. 10, 1933,(8) the right of Francis H. Shoemaker, 
of Minnesota, to be sworn in was challenged on the ground that he had 
been convicted of a felony, and that under the Minnesota state 
constitution any felony conviction resulted in the loss of citizenship, 
unless restored by the state legislature.(9)
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 8. 77 Cong. Rec. 131-39, 73d Cong. 1st Sess.
 9. Id. at p. 134.
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    Since, however, Mr. Shoemaker had been convicted of a federal 
offense (mailing libelous and indecent matter on wrappers or envelopes) 
and not a state felony, and the conviction involved no moral turpitude, 
the House adopted a resolution authorizing Mr. Shoemaker to be sworn 
but referring the question of his final right to a seat to an elections 
committee.(10)
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10. Id. at pp. 137-39.
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    No further action was taken and Mr. Shoemaker served a full term as 
a Member of the House.

Sec. 11.5 The House adopted a resolution expressing the sense of the 
    House that Members convicted of certain felonies should refrain 
    from participating in committee business and from voting in the 
    House until the presumption of innocence was reinstated or until 
    the Member was re-elected to the House.

    On Nov. 14, 1973,(11) the House adopted House Resolution 
700, providing for the consideration of a resolution expressing the 
sense of the House with respect to actions which should be taken by 
Members upon being convicted of certain crimes. Mr. Charles M. Price, 
of Illinois, of the reporting committee (Standards of Official Conduct) 
asked unanimous consent that the resolution provided

[[Page 769]]

for, House Resolution 128, be considered in the House as in the 
Committee of the Whole. The request was granted, and the House adopted 
the following resolution:
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11. 119 Cong. Rec. 36943, 36944, 93d Cong. 1st Sess.
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                                  H. Res. 128

        Resolved, That it is the sense of the House of Representatives 
    that any Member of, Delegate to, or Resident Commissioner in, the 
    House of Representatives who has been convicted by a court of 
    record for the commission of a crime for which a sentence of two or 
    more years' imprisonment may be imposed should refrain from 
    participation in the business of each committee of which he is then 
    a member and should refrain from voting on any question at a 
    meeting of the House, or of the Committee of the Whole House, 
    unless or until judicial or executive proceedings result in 
    reinstatement of the presumption of his innocence or until he is 
    reelected to the House after the date of such conviction. This 
    resolution shall not affect any other authority of the House with 
    respect to the behavior and conduct of its Members.(12)
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12. For a similar resolution reported in a preceding Congress but not 
        considered in the House, see H. Res. 933, 92d Cong.
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