[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[C. Qualifications and Disqualifications]
[Â§ 13. Incompatible Offices]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 771-780]
 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 13. Incompatible Offices

    The Constitution prohibits service as a Member of Congress to one 
holding an office under the United States during the continuancy 
thereof; it also prohibits any Member from being appointed during his 
term to any civil office under the United States which was created or 
the emoluments of which were increased during his term.(3) 
The first prohibition, against holding incompatible offices, was 
designed to avoid executive influence on Members of Congress and to 
protect the principle of the separation of powers.(4) The 
latter prohibition attempts to ensure the disinterested vote of Members 
of Congress in creating civil offices and in increasing the salaries 
and privileges of such offices.(5) To bar

[[Page 772]]

appointment, the increased emolument must be measurable and must accrue 
to the appointee upon taking office.(6)
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 3. Art. I, Sec. 6, clause 2.
 4. See The Federalist No. 76 (Hamilton), Modern Library (1937), and 
        Story, Commentaries on the Constitution of the United States 
        Sec. Sec. 866-869, Da Capo Press (N.Y. repub. 1970). There was 
        little discussion of this provision at the Constitutional and 
        Ratifying Conventions, its purpose being self-evident.
 5. ``The reasons for excluding persons from offices, who have been 
        concerned in creating them, or increasing their emoluments, are 
        to take away, as far as possible, any improper bias in the vote 
        of the Representative, and to secure to the constituents some 
        solemn pledge of his disinterestedness. The actual provision, 
        however, does not go to the extent of the principle; for his 
        appointment is restricted only `during the time, for which he 
        was elected'; thus leaving in full force every influence upon 
        his mind, if the period of his election is short, or the 
        duration of it is approaching its natural termination.'' Story, 
        Commentaries on the Constitution of the United States Sec. 864, 
        Da Capo Press (N.Y. repub. 1970).
 6. See Sec. Sec. 13.4, et seq., infra.
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    The holding of incompatible offices may be challenged either by 
Members of the House or by private citizens at the convening of 
Congress.(7) On some occasions, the House has assumed or 
declared the seat vacant of a Member who has accepted an incompatible 
office.(8) A resolution excluding a Member who has accepted 
such an office may be agreed to by a majority vote.(9)
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 7. See, generally, House Rules and Manual Sec. Sec. 95-98 (comment to 
        U.S. Const. art. I, Sec. 6, clause 2) (1973).
            The Committee on the Judiciary has jurisdiction over the 
        acceptance by Members of incompatible offices. House Rules and 
        Manual Sec. 707 (1973).
 8. See 1 Hinds' Precedents Sec. Sec. 488, 492, 501, 502, 572; 6 
        Cannon's Precedents Sec. 65.
 9. 1 Hinds' Precedents Sec. 490. A majority vote is sufficient since 
        the House is the sole judge of the qualifications of its 
        Members. U.S. Const. art. I, Sec. 5, clause 1.
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    One issue arising from the interpretation of the prohibition 
against the holding of incompatible offices is the point in time at 
which a Member-elect must remove himself from the incompatible 
office.(10) The main question is whether a Member-elect may 
continue to hold an incompatible office up to the time of convening of 
Congress or even beyond the initial meeting of Congress.(11) 
It has

[[Page 773]]

been established that a Member-elect is not disqualified from taking 
his seat if he holds an incompatible office up to the day Congress 
convenes.(12)
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10. For a summary of the precedents and rulings, see House Rules and 
        Manual Sec. Sec. 95-98 (1973) (comment to U.S. Const. art. I, 
        Sec. 6, clause 2).
11. For instances where Members-elect were held to have disqualified 
        themselves for seats in the House by holding incompatible 
        offices beyond the convening of Congress, see 1 Hinds' 
        Precedents Sec. Sec. 492, 500.
            For decisions allowing Members-elect to defer the choice 
        between the incompatible office and the congressional seat 
        beyond the assembly of Congress, see 1 Hinds' Precedents 
        Sec. Sec. 498, 503. See also Sec. 13.1, infra, for a recent 
        precedent on the issue.
            The rationale for allowing Members-elect to defer 
        satisfying the age and citizenship requirements of the 
        Constitution until appearing to take the oath (see 
        Sec. Sec. 10.1, 10.2, supra) would appear to allow the deferral 
        of the choice between incompatible offices to the same point in 
        time. See S. Rept. No. 904, 74th Cong. 1st Sess., reprinted at 
        79 Cong. Rec. 9651-53, 74th Cong. 1st Sess.
            The House has affirmatively decided that an election 
        contestant holding an incompatible office need not make his 
        selection until the House has declared him entitled to the 
        seat. 1 Hinds' Precedents Sec. 505.
12. See 1 Hinds' Precedents Sec. 499. In 15 Op. Att'y Gen. 281 (1877) 
        it was concluded that a Member-elect could continue to act as a 
        government contractor up to the time Congress met.
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    The most recent precedent in relation to this issue occurred in the 
Senate at the opening of the 85th Congress, when a Senator-elect 
continued to hold a state executive position until five days after the 
meeting of Congress, when he appeared to take the oath; there was not, 
however, any explicit ruling on the subject, as his right to be sworn 
was not challenged.(13) The Senator-elect in that case 
waived his congressional salary up to the time of taking the 
oath.(14)
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13. See Sec. 13.1, infra.
14. In 14 Op. Att'y Gen. 406 (1874) it was proposed that since a 
        Member-elect could lawfully hold an office under the United 
        States until appearing to be sworn, he was entitled to receive 
        pay for both positions before becoming a sworn Member. That 
        conclusion was based in part on the decision in Converse v 
        U.S., 62 U.S. 463 (1859) that a person holding two compatible 
        offices under the government is not precluded from receiving 
        the salaries of both by any provision of the general laws 
        prohibiting double compensation (see also 9 Op. Att'y Gen. 508 
        [1860]; 12 Op. Att'y Gen. 459 [1868]).
            See, however, the determination of the House at 1 Hinds' 
        Precedents Sec. 500 that a Member-elect receiving pay as a 
        military officer was disqualified from taking his congressional 
        seat or from receiving any congressional salary as of the 
        moment the Congress to which he was elected convened, 
        regardless of the time when he would appear to take the oath 
        (the main issue before the committee was not the status of that 
        Member-elect, who resigned before taking the oath, but the 
        entitlement to salary of his successor). That precedent, 
        inferring that a Member-elect becomes a full Member upon the 
        assembly of the House, is at variance with other rulings 
        expressing the conclusion that he does not become a Member 
        until being sworn (see for example, 1 Hinds' Precedents 
        Sec. 499).
            A report cited at 1 Hinds' Precedents Sec. 184, while 
        determining that a Member-elect could receive compensation for 
        another governmental office before the convening of Congress, 
        stated that the precedents in the House did not ``determine 
        that he [the Member-elect] may also be compensated as a Member 
        of Congress for the same time for which he was compensated in 
        the other office.'' The committee chose to leave the question 
        open in their report.

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[[Page 774]]

    Extensive House debate on the meaning of the word ``office'' as 
used in the constitutional provision suggests that the appointment of 
Members-elect as commissioners without legislative, executive, or 
judicial powers is not incompatible.(15) A prohibited office 
is one characterized by tenure, duration, emoluments, and duties 
inconsistent with those of a Member of Congress.(16)
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15. See 1 Hinds' Precedents Sec. 493.
16. See U.S. v Hartwell, 73 U.S. 385, 393 (1868) and Sec. 13.2, infra.
            A Member may undertake temporary paid service for the 
        executive (see 1 Hinds' Precedents Sec. 495 and 2 Hinds' 
        Precedents Sec. 993).
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    Various federal statutes prohibit Members from holding certain 
enumerated offices inconsistent with membership (17) and 
from contracting with the government.(17)
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17. See 12 USC Sec. 303 (board of governors, Federal Reserve System, 
        Director of Federal Reserve Bank); 18 USC Sec. 204 (practice 
        before Court of Claims); 25 USC Sec. 700 (practice before 
        Indian Claims Commission).
18. The House has declined to hold that a contractor with the 
        government is disqualified to serve as a Member (see 1 Hinds' 
        Precedents Sec. 496); see, however, 18 USC Sec. 203(a) (no 
        compensation for a Member for services relating to proceedings 
        where government party or interest); 18 USC Sec. 431 (no 
        contracts by Member with government); 33 USC Sec. 702m (no 
        interest, flood control contracts); 41 USC Sec. 22 (no 
        interest, all contracts with government).
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    The Constitution does not prohibit Members of Congress from holding 
state elective or appointive offices. The House has determined, 
however, that a high state office is incompatible with congressional 
membership, due to the manifest inconsistency of the respective duties 
of the positions.(19) In addition, many state constitutions 
and statutes prohibit state elective or appointive officials from 
holding congressional seats.(20) Some state statutes which 
require candidates for congressional seats to first resign from state 
offices have been challenged on the ground that they unconstitutionally 
add to the qualifications of Members-elect

[[Page 775]]

and Senators-elect.(1) The common law concept that one may 
not hold incompatible offices and the requirement that Members of 
Congress attend upon the sessions of the House and Senate would act as 
bars to the holding of most state offices by Members of 
Congress.(2)
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19. See 6 Cannon's Precedents Sec. 65. For instances where Senators-
        elect held high state positions beyond the meeting of Congress, 
        but before taking the oath, see Sec. 13.1, infra, and 1 Hinds' 
        Precedents Sec. 503.
20. See, for example, Pa. Const. art. 12, Sec. 2. See also State ex 
        rel. Davis v Adams, 238 So.2d 415 (Fla. 1970) (in course of 
        discussing a Florida statute on the subject, the court listed 
        the following states with similar constitutional or statutory 
        provisions: Arizona, Wisconsin, Oklahoma, Delaware, Indiana, 
        Washington).
 1. The Supreme Court dismissed an appeal from one such state court 
        case which held that the state could require a candidate to 
        resign from a sheriff position before entering the race. State 
        ex rel. Davis v Adams, 238 So.2d 415 (Fla. 1970), stay granted, 
        400 U.S. 1203 (J. Black in Chambers) (1970), appeal dismissed, 
        400 U.S. 986 (1970).
 2. See 6 Cannon's Precedents Sec. 65 and 1 Hinds' Precedents Sec. 563.
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                            Cross References
Military service as incompatible office, see Sec. 14, infra.
Incompatible offices as related to Delegates and Resident 
    Commissioners, see Sec. 3, supra.
House officers, officials, and employees and incompatible offices, see 
    Ch. 6, supra.                          -------------------

Incompatible Offices

Sec. 13.1 A Senator-elect deferred his choice between an incompatible 
    state office and his congressional seat until he appeared to take 
    the oath, after the convening of Congress.(3)
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 3. Although the Constitution is silent on Members of Congress holding 
        high state offices, the House has ruled that such an office is 
        incompatible with congressional membership (see 6 Cannon's 
        Precedents Sec. 65).
            Numerous cases of Members-elect holding incompatible 
        offices have produced, after much discussion, the principle 
        that a Member-elect or contestant to a seat may continue to 
        hold such office until he is actually sworn and seated in the 
        House, since a Member-elect does not yet have the status of a 
        ``Member'' under U.S. Const. art. I, Sec. 6, clause 2. See 1 
        Hinds' Precedents Sec. Sec. 184, 492-505.
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    Jacob K. Javits, Senator-elect from New York, did not appear on 
Jan. 3, 1957, the opening day of the 85th Congress, to take the oath 
with the rest of the Senate, but was administered the oath on Jan. 9, 
1957.(4) No objection was made to the administration of the 
oath to Mr. Javits, although he did not resign from his position as 
Attorney General of the State of New York until the day he appeared to 
take the oath of office in the Senate.(5) Mr. Javits waived 
his congressional salary for the period prior to his taking of the 
oath.(6)
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 4. 103 Cong. Rec. 340, 85th Cong. 1st Sess.
 5. Biographical Directory of the American Congress 1774-1971, S. Doc. 
        No. 92-8 pp. 1183, 1184, 92d Cong. 1st Sess. (1971).
 6. Senate Manual Sec. 863 (1971).
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Sec. 13.2 The House passed a bill denying extra compensation

[[Page 776]]

    for any Member appointed as a United Nations representative to 
    avoid the prohibition against holding incompatible 
    offices.(7)
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 7. For an instance where a Member of the House resigned to accept an 
        appointment as a member of the U.S. delegation to the United 
        Nations, see 111 Cong. Rec. 25342, 89th Cong. 1st Sess., Sept. 
        28, 1965.
            In the 88th Congress, S. Res. 142 was introduced and 
        referred to committee, to inquire whether simultaneous service 
        as a Senator and as a United Nations delegate violated the 
        incompatibility provision. See 109 Cong. Rec. 8843, 88th Cong. 
        1st Sess., May 16, 1963. No action was taken on the resolution.
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    On Dec. 18, 1945, the House was considering a proposed bill to 
provide for the participation of the United States in the United 
Nations.(8) A committee amendment was offered to the bill, 
denying compensation for the position of representative to the United 
Nations for any Member of the Senate or House of Representatives who 
might be designated as such representative; the amendment had: been 
drafted in order to avoid the possible conflict of a Member holding an 
incompatible office with compensation, under article I, section 6, 
clause 2, of the Constitution.(9)
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 8. 91 Cong. Rec. 12267, 79th Cong. 1st Sess.
 9. See H. Rept. No. 1383, 79th Cong. 1st Sess. By removing 
        compensation for the position, if held by a Member, the 
        amendment removed the office from the Supreme Court's 
        definition of an incompatible office, a ``term (which) embraces 
        the ideas of tenure, duration, emoluments, and duties.'' U.S. v 
        Hartwell, 73 U.S. 385, 393 (1868).
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    Before the House agreed to the amendment denying compensation to a 
Member,(10) Mr. Sol Bloom, of New York, explained that the 
amendment would not preclude a Member of the House or Senate appointed 
as representative to the United Nations from receiving an expense 
allowance for duties connected with the office.(11)
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10. 91 Cong. Rec. 12286, 79th Cong. 1st Sess.
11. 91 Cong. Rec. 12281, 79th Cong. 1st Sess.
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Sec. 13.3 A Member who had been accepted and confirmed as a new federal 
    district judge submitted his congressional resignation to the 
    governor of his state approximately three months prior to the 
    effective date of that resignation.

    On Oct. 2, 1963,(12) the Speaker laid before the House 
the resignation of Mr. Homer Thornberry, of Texas, to take effect on 
the 20th day of December 1963.
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12. 109 Cong Rec. 18583, 88th Cong. 1st Sess.
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    Parliamentarian's Note: Mr. Thornberry had been nominated

[[Page 777]]

on July 9, 1963, to be a federal district judge, and confirmed by the 
Senate on July 15, 1963. Mr. Thornberry withheld the effective date of 
his resignation because of the press of business in Congress and also 
because a special election had been scheduled for Dec. 9, 1963, in 
Texas.

Appointment to Civil Office

Sec. 13.4 The nomination of a Senator as a Justice to the Supreme Court 
    was confirmed by the Senate in the 75th Congress, despite 
    constitutional challenges that a new retirement provision had 
    increased the emoluments and positions for Supreme Court Justices, 
    and that the Senator could not be appointed without violating U.S. 
    Constitution article I, section 6, clause 2.(13)
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13. A private citizen sought Supreme Court review of the appointment of 
        the Senator, alleging violation of art. I, Sec. 6, clause 2, 
        but was denied standing in Ex parte Levitt, 302 U.S. 633 (1937) 
        (per curiam).
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    On Aug. 12, 1937, the President submitted to the Senate the 
nomination of Hugo Black, then Senator from Alabama, to be an Associate 
Justice of the Supreme Court.(14)
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14. 81 Cong. Rec. 8732, 75th Cong. 1st Sess.
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    On Aug. 16, 1937, Senator Wallace H. White, Jr., of Maine, arose to 
state his intention to oppose the nomination of Senator Black, on the 
ground that Senator Black's appointment would violate article I, 
section 6, clause 2, of the Constitution, prohibiting the appointment 
of a Member of Congress to a civil office which shall have been created 
or the emoluments of which shall have been increased during the time 
for which he was elected.(15)
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15. Id. at pp. 8951-58.
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    Senator White based his challenge on the Retirement Act of Mar. 1, 
1937:

        Justices of the Supreme Court are hereby granted the same 
    rights and privileges with regard to retiring, instead of 
    resigning, granted to judges other than Justices of the Supreme 
    Court by section 260 of the Judicial Code.

    Senator White stated that the act had given to a Justice the new 
financial emolument of retirement with a salary that could not be 
diminished by taxation or by other means, as well as the emoluments of 
the certainty of unlimited compensation and the privilege of voluntary 
judicial service while a retired Justice.(16) On the same 
day, Senator Frederick Steiwer, of Oregon, arose to state that he

[[Page 778]]

shared Senator White's opinion, and added that not only had the 
emoluments been increased, but also an entirely new civil office had 
been created, by adding an ``inactive retired Justice'' to the 
Court.(17)
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16. Id. at p. 8954.
17. Id. at p. 8961.
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    On Aug. 17, 1937, Senator Black's nomination was reported favorably 
to the Senate, and extensive debate ensued on the constitutional 
challenge, as stated in part by Senator Edward R. Burke, of Nebraska:

        I . . . say with respect to the matter of eligibility, that a 
    new office was created, and our colleague cannot be boosted into 
    that new office until the term for which he was elected has 
    expired. But even beyond all that, as clear as the English language 
    can express it, the Retirement Act of March 1, 1937, increases the 
    emoluments of the office of Justice of the Supreme Court, and the 
    provisions of the Constitution prohibit any Senator during the term 
    for which he was elected from ascending to that 
    office.(18)
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18. 81 Cong. Rec. 9077, 75th Cong. 1st Sess. The debate extends at 81 
        Cong. Rec. from 9068 to 9103.
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    Senator Tom T. Connally, of Texas, arose to support the nomination 
and to state that the Retirement Act had in no way created a new office 
or added to the emoluments of Supreme Court Justices.(19)
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19. Id. at pp. 9082-88.
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    The Senate rejected the constitutional challenge to Senator Black's 
nomination, and confirmed his appointment.(20)
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20. Id. at p. 9103. For the view of a commentator that the 
        constitutional prohibition was not violated in Senator Black's 
        case, see Corwin, The Constitution of the United States of 
        America: Analysis and Interpretation, p. 101 (1953).
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Sec. 13.5 A Member resigned from the House, his resignation to be 
    effective on the day of transmittal, in order to avoid the 
    constitutional prohibition against being appointed to a civil 
    office under the United States of which the salary shall have been 
    increased during the time for which the Member was 
    elected.(1)
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 1. The constitutional provision has been interpreted to mean that the 
        critical time, as to when the appointment is effective, is when 
        the President signs the certificate of appointment, following 
        Senate confirmation. See In re Accounts of Honorable Matt W. 
        Ransom, For Compensation as Envoy to Mexico, Decisions of the 
        Comptroller of the Treasury, Vol. 2, p. 129, dated Sept. 6, 
        1895.
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    On Feb. 27, 1969,(2) Mr. James F. Battin, of Montana, 
notified the House that he had submitted his

[[Page 779]]

resignation as a Member to the Governor of his state, to be effective 
at 3:30 p.m. on the day of transmittal. At that precise hour he was 
sworn in as a United States district judge, which appointment had been 
confirmed by the Senate on Feb. 25, 1969.
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 2. 115 Cong. Rec. 4734, 91st Cong. 1st Sess.
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    Mr. Battin resigned at the time he did and took the oath of judge 
at the hour of 3 :30 p.m. on Feb. 27 in order to assume office before 
Mar. 1, which would have been the effective date of a judicial pay 
raise enacted by the Congress.(3) Mr. Battin therefore 
avoided violating the constitutional prohibition against a Member of 
Congress being appointed to a civil office whose emoluments had been 
increased during the Member's term.
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 3. The judicial pay raise was effectuated by Pub. L. No. 90-206, 81 
        Stat. 642, codified as 2 USC Sec. Sec. 351-361, which created a 
        commission to recommend salary increases to the President, who 
        would then embody those recommendations in his budget request. 
        For the President's proposed 1969 salary increases, see note to 
        2 USCA Sec. 356.
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Sec. 13.6 The Senate confirmed the appointment of a Member of the House 
    to a cabinet office where at the time of appointment there was a 
    possibility, but not a certainty, that a proposed salary increase 
    for the position could receive final approval at a future date.

    On Jan. 20, 1969, the Senate confirmed without discussion the 
nomination of Mr. Melvin R. Laird, of Wisconsin, then a Member of the 
House, as Secretary of Defense.(4) Mr. Laird resigned his 
House membership on Jan. 23, 1969.(5)
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 4. 115 Cong. Rec. 1294, 91st Cong. 1st Sess.
 5. 115 Cong. Rec. 1571, 91st Cong. 1st Sess.
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    During Mr. Laird's prior term as a Member of the House, Congress 
had enacted the Federal Salary Act of 1967, which provided for a salary 
commission to make recommendations to the President on proposed 
increases for executive, legislative, and judicial salaries, and for 
the President to embody those recommendations in his next proposed 
budget to Congress.(6)
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 6. Pub. L. No. 90-206, 81 Stat. 642, codified as 2 USC Sec. Sec. 351-
        361.
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    Under that act, proposed salary increases for cabinet officials and 
others were pending before Congress when Mr. Laird was nominated and 
confirmed as Secretary of Defense.(7)
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 7. See note following 2 USCA Sec. 358. The proposed increases were 
        submitted to Congress on Jan. 15, 1969.

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[[Page 780]]

    The Attorney General of the United States had advised Mr. Laird, in 
an opinion dated Jan. 3, 1969, that article I, section 6, clause 2 of 
the Constitution did not prohibit the appointment of a legislator to an 
office when at the time of his appointment it was possible but not 
certain that a proposed salary increase for that office could receive 
final approval at a future date.(8)
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 8. See 42 Op. Atty Gen. 36.
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Sec. 13.7 In the 93d Congress, a bill was passed decreasing the salary 
    for the position of Attorney General of the United States, in order 
    that Senator could be nominated to the position without violating 
    article I, section 6, clause 2 of the United States Constitution.

    On Dec. 10, 1973, the President signed into law Public Law 93-178, 
87 Stat. 697, which read in part as follows:

        Be it enacted by the Senate and House of Representatives of the 
    United States of America in Congress assembled, That the 
    compensation and other emoluments attached to the Office of 
    Attorney General shall be those which were in effect on January 1, 
    1969, notwithstanding the provisions of the salary recommendations 
    for 1969 increases transmitted to the Congress on January 15, 1969, 
    and notwithstanding any other provision of law, or provision which 
    has the force and effect of law, which is enacted or becomes 
    effective during the period from noon, January 3, 1969, through 
    noon, January 2, 1975.(9)
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 9. 119 Cong. Rec. 40266, 93d Cong. 1st Sess., Dec. 7, 1973.
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    The decrease in the salary for Attorney General was necessary in 
order to avoid violating article I, section 6, clause 2 of the 
Constitution, which provides that no Senator or Representative shall, 
during the time for which elected, be appointed to a civil office, the 
emoluments of which shall have been increased during such time. The 
President had nominated Senator William B. Saxbe, of Ohio, as Attorney 
General, and the salary for the position had been increased during his 
term as a Senator.



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