[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 7.  The Members]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 651-657]
 
                               CHAPTER 7
 
                              The Members


[[Page 651]]




A. Introductory

    Sec. 1. In General; Rights and Privileges; Term of Office
    Sec. 2. Seniority and Derivative Rights
    Sec. 3. Status of Delegates and Resident Commissioner

B. Compensation and Allowances

    Sec. 4. Salary; Benefits and Deductions
    Sec. 5. Leaves of Absence
    Sec. 6. Travel
    Sec. 7. Franking
    Sec. 8. Office and Personnel Allowances; Supplies

C. Qualifications and Disqualifications

    Sec. 9. In General; House as Judge of Qualifications
   Sec. 10. Age, Citizenship, and Inhabitancy
   Sec. 11. Conviction of Crime; Past Conduct
   Sec. 12. Loyalty
   Sec. 13. Incompatible Offices
   Sec. 14. Military Service

D. Immunities of Members and Aides

   Sec. 15. Generally; Judicial Review
   Sec. 16. For Speech and Debate
   Sec. 17. For Legislative Activities
   Sec. 18. From Arrest
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    Commentary and editing by Peter D. Robinson, J.D.




                         DESCHLER'S PRECEDENTS

deschler's precedents


[[Page 652]]

                          INDEX TO PRECEDENTS

Allowances
    House Administration Committee, jurisdiction over, Sec. Sec. 6.1-
        6.3, 8.1 et seq.
Appointment to civil office
    cabinet appointment, constitutional issue raised, Sec. 13.6
    Supreme Court appointment, constitutional challenge to, Sec. 13.4
    time of resignation from House to avoid violating Constitution, 
        Sec. 13.5
Clerk-hire allowance (see also Employees of Members)
    adjustments to, Sec. 8.4
    jurisdiction of Committee on House Administration over, Sec. 8.1
Code of conduct
    gifts and honorariums, Sec. Sec. 1.1, 1.2
Committees
    Committee on Committees, jurisdiction over committee elections, 
        Sec. 2.7
    Judiciary Committee, jurisdiction over court appearance of Members, 
        Sec. 15.2
    membership on, of Delegates and Resident Commissioner, 
        Sec. Sec. 3.9-3.11
    seniority in, Sec. Sec. 2.2, 2.5-2.7
Congressional Record
    immunity as to remarks inserted in, Sec. 16.3
    reprints of, mailed under frank, Sec. 7.4
    republication and distribution of, limited immunity as to, 
        Sec. 16.3
Constituents
    communications as to, by Member to executive branch, Sec. 1.5
Contingent fund
    jurisdiction of Committee on House Administration over, Sec. 8.1
    payments from, as privileged, Sec. 8.8
Crime
    as disqualification to membership, Sec. 11.4
Deaths
    announcement of, by senior Member of state delegation, Sec. 2.21
    unpaid salary of deceased Member, Sec. Sec. 4.12, 4.13
Delegates and Resident Commissioner
    code of official conduct governs, Sec. 3.8
    committee membership, Sec. 3.9
    elimination through statehood or independence, Sec. Sec. 3.3-3.5
    establishment of office, Sec. Sec. 3.1, 3.2
    floor rights, Sec. 3.8
    introduction of bills by, Sec. 3.6
    powers and privileges in committee, Sec. Sec. 3.10, 3.11
    recommittal of private bills caused by, Sec. 3.7
Employees of Members
    clerk-hire allowance, Sec. Sec. 8.4, 8.5
    House Administration Committee, jurisdiction over, Sec. Sec. 8.1, 
        8.2
    legislative aides as entitled to immunity of Member, Sec. 17.4
    minimum gross annual salary, Sec. 8.5
    temporary employment, Sec. 8.2
Exclusion of Member-elect
    for other than constitutional qualifications, Sec. Sec. 9.3-9.6
Foreign gifts and awards
    consent of Congress for, Sec. 1.3
    resolutions authorizing receipt of, Sec. Sec. 1.3, 1.4
    Speaker's acceptance of, resolution authorizing, Sec. 1.4
Franking privilege
    abuse of, as question of privilege, Sec. 7.5
    congressional guidelines, Sec. 7.1
    Congressional Record and reprints, Sec. 7.4
    judicial inquiry into use of, Sec. 16.2

[[Page 653]]

    patron mail, allowed for House but not for Senate, Sec. 7.3
    postal service interpretation and enforcement, Sec. 7.2
Gifts and honorariums
    disclosure of, by House rule, Sec. 1.2
    restrictions on, Sec. 1.1
House
    conditional waiver of privilege of the House, Sec. 18.3
    exclusion from, for improper conduct, Sec. 11.1
    exclusion of Member-elect from, by majority vote, Sec. 9.3
House officers
    Clerk's authority over House funds, Sec. Sec. 4.2, 6.7
    enjoining enforcement of exclusion resolution by, Sec. 9.4
    liability for executing unconstitutional congressional order, 
        Sec. 16.5
    services to Delegates and Resident Commissioner, Sec. 3.8
Immunities
    House determines violation of, Sec. 15.1
    jurisdiction of Judiciary Committee, Sec. 15.2
    procedure when Member subpoenaed Sec. Sec. 15.2, 15.3
Immunity from arrest
    accommodation with court, Sec. 18.2
    criminal summons or arrest, application of, Sec. 18.5
    grand jury inquiry, application of, Sec. 17.4
    grand jury summons, application of, Sec. Sec. 18.1, 18.2
    subpena of witness, application of, Sec. Sec. 18.3, 18.4
    violation of, as question of privilege, Sec. Sec. 18.2-18.4
Immunity of speech and debate
    application to House officials, Sec. 16.5
    Congressiona Record materials, Sec. 16.3
    defense of, to conspiracy or bribery charge, Sec. Sec. 16.1, 16.2
    defense of, to defamation suit, Sec. Sec. 16.3, 16.4
    relation to franking privilege, Sec. 16.2
Immunity of speech and debate for legislative activities
    committee activities and reports, Sec. Sec. 17.1-17.3
    disclosure of classified material, Sec. 17.4
    employees of House, application to, Sec. 17.1
    grand jury inquiry of legislative aide, Sec. 17.4
Incompatible offices
    dual salary prohibited, Sec. Sec. 13.1, 13.2, 14.7
    military service, Sec. Sec. 14.1 et seq.
    resignation to accept, Sec. Sec. 13.2, 13.3
    state executive position as, Sec. 13.1
    United Nations appointment as, Sec. 13.2
    waiver of salary when retaining, Sec. 13.1
Judiciary
    appointments of Members to, Sec. Sec. 13.3-13.5
    review by, of use of frank, Sec. 7.1
Leaves of absence
    challenges to requests for, Sec. Sec. 5.5, 5.6
    military service, Sec. Sec. 5.3, 5.4
    salary deduction, Sec. Sec. 5.1, 5.8
Litigation by Members, Sec. Sec. 1.6-1.9
Medical expenses of Members injured in House, Sec. 4.11
Member-elect, standing to sue House officer, Sec. 1.6
Military service
    Congress allows Members to serve, Sec. Sec. 14.4, 14.5
    congressional salary withheld during, Sec. 14.7

[[Page 654]]

    draft deferment for Congressmen, Sec. 14.3
    reserve duty as incompatible, Sec. 14.1
    reserve duty of Congressmen, Sec. 14.2
    World War II practice, Sec. Sec. 14.4-14.7
Office space and supplies
    adjustments in, by committee, Sec. Sec. 8.3, 8.6
    effect of seniority, Sec. 2.1
    home district, adjustment of allowances for, Sec. 8.6
    jurisdiction of House Administration Committee over, Sec. Sec. 8.1, 
        8.3, 8.8
``Pentagon papers,'' disclosure of, Sec. 17.4
Qualifications and disqualifications (see also Incompatible offices)
    age requirement satisfied at taking oath, Sec. Sec. 10.1 et seq.
    challenge by citizen, Sec. 9.2
    challenging procedure, Sec. 9.1
    citizenship, claim of forfeiture of, Sec. 10.3
    citizenship requirement satisfied at taking oath, Sec. Sec. 10.1-
        10.3
    criminal conviction as disqualification, Sec. 11.4
    Delegates, qualifications for, Sec. Sec. 3.1, 3.2
    inhabitancy, challenges to, Sec. 10.4
    inhabitancy, requirement of, at time of election, Sec. 10.4
    limits on House power to determine, Sec. Sec. 9.3, 9.4
    past conduct as disqualification, Sec. Sec. 11.1-11.3
    Senate determinations, Sec. Sec. 9.5, 9.6
Salary of Members
    challenged Member-elect, Sec. Sec. 4.3-4.5
    Commission on Executive, Legislative, and Judicial Salaries, 
        Sec. 4.1
    deduction for unauthorized absence, Sec. 5.1
    deduction from, as penalty, Sec. 4.4
    disposition of, when deceased, Sec. Sec. 4.12, 4.13
    dual compensation, Sec. Sec. 4.6, 4.7
    fixing, Sec. 4.1
    funds for, Sec. 4.2
    of Member-elect pending investigation, Sec. 4.3
    retirement, health, and insurance benefits, Sec. Sec. 4.10, 4.11
    retroactive to beginning of term, Sec. 4.5
    Sergeant at Arms disburses, Sec. Sec. 4.2, 4.6
    waiver of, Sec. Sec. 4.8, 4.9
Senate
    exclusion from, for improper conduct, Sec. Sec. 11.2, 11.3
    qualifications and disqualifications in general, Sec. Sec. 9.5-9.7
    qualifications of age, citizenship, and inhabitancy, Sec. 10.2
    seniority practice, Sec. Sec. 2.23, 2.24
    waiver of salary by Senator, Sec. 4.9
Seniority
    committee seniority, Sec. Sec. 2.5-2.7
    computation of, Sec. Sec. 2.1-2.3
    corrections in, Sec. Sec. 2.8-2.10
    definition of, Sec. Sec. 2.1, 2.2, 2.20
    Delegates and Resident Commissioner, Sec. Sec. 3.10, 3.11
    demotions in, Sec. Sec. 2.11-2.16
    effect of, in ceremonial functions, Sec. Sec. 2.20-2.22
    of Member-elect, Sec. 2.11
    party realignment as affecting, Sec. Sec. 2.17, 2.18
    recognition for amendments based on, Sec. 2.19
    Senate practice, Sec. Sec. 2.23, 2.24
Stationery allowance, Sec. 8.7
Summons and subpenas, Sec. Sec. 18.1-18.5
Travel allowance
    adjustments in, power of House Administration Committee as to, 
        Sec. Sec. 6.2, 6.3

[[Page 655]]

    appointees to attend conferences and ceremonies, right to, 
        Sec. Sec. 6.5, 6.6
    counterpart funds for overseas travel, Sec. Sec. 6.8, 6.9
    extra sessions, resolution for, Sec. 6.7
    jurisdiction over, by House Administration Committee, 
        Sec. Sec. 6.1, 6.2
    Members and employees, right to, Sec. Sec. 6.3, 6.4
    regulation of, Sec. 6.8
Vote
    majority, to exclude Member-elect for improper conduct, Sec. 9.3
    two-thirds, to expel for improper conduct, Sec. 9.5
      
      

[[Page 657]]

                              The Members



 
                               CHAPTER 7
 
                              The Members
 
                            A. INTRODUCTORY
 
Sec. 1. In General; Rights and Privileges; Term of Office

    Membership in the House of Representatives entitles the Members to 
compensation, to miscellaneous privileges and allowances, and to 
immunities protecting their independence and integrity. But a Member-
elect must first satisfy the House that he has met all the 
qualifications for membership required of him. Those rights, 
immunities, and qualifications are the subject of this 
chapter.(1)
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 1. Delegates and Resident Commissioners enjoy in full or in part the 
        rights and duties arising from congressional membership. Their 
        status is analyzed specifically in Sec. 3, infra, and other 
        sections refer to them where applicable.
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    Ancillary matters dealing primarily with parliamentary procedure, 
such as questions of privilege relating to Members,(2) are 
treated elsewhere.
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 2. For privilege, see Ch. 11, infra.
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    The qualifications for membership, are mandated by the United 
States Constitution.(3) Members' allowances and the methods 
of disbursement thereof are governed by statute, principally title 2 of 
the United States Code. Other matters relating to Members, such as 
seniority and derivative rights, are based on the custom and practice 
of the House.
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 3. See U.S. Const. art. I, Sec. 2, clause 2.
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    The term of office for a Member is mandated by the 20th amendment 
to the Constitution to begin on Jan. 3 of the odd-numbered year for 
which elected, and to extend for two years to noon on Jan. 3 of the 
next odd-numbered year.(4) Prior to the ratification of the 
amendment, the terms of

[[Page 658]]

Members had begun on Mar. 4 of the odd-numbered years and terminated on 
Mar. 3 two years later.(5) If Congress assembles for its 
first session after Jan. 3, Representatives-elect receive salary from 
Jan. 3 if credentials have been filed with the Clerk of the 
House.(6)
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 4. Section 1 of the amendment, ratified in 1933, states that the terms 
        of Senators and Representatives shall end ``at noon on the 3d 
        day of January, of the years in which such terms would have 
        ended if this article had not been ratified'', and section 2 
        states that the first assembly of a Congress ``shall begin at 
        noon on the 3d day of January, unless they shall by law appoint 
        a different day.'' For commentary on the provisions, see House 
        Rules and Manual Sec. 6 (comment to U.S. Const. art. I, Sec. 2, 
        clause 1) and Sec. 279 (comment to amendment 20) (1973).
 5. A joint committee of the First Congress determined that under a 
        resolution of the Continental Congress (First Congress to meet 
        on Mar. 4, 1789) and under U.S. Const. art. I, Sec. 2, clause 1 
        (Members to be chosen every second year), the terms of 
        Representatives and Senators of the first class commenced on 
        the 4th of March and terminated two years later on Mar. 3 (see 
        1 Hinds' Precedents Sec. Sec. 3, 11). That construction was 
        followed until the adoption of the 20th amendment.
 6. 2 USC Sec. 34.
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    Under the Code of Official Conduct, a Member is prohibited from 
accepting any gift of substantial value from any person or organization 
having a direct interest in legislation.(7) A Member is 
required to disclose the amounts of any gifts received for campaign 
expenditures, which are likewise regulated and must be kept separate 
from personal funds under the code.(8) In relation to 
``honorariums,'' a Member is prohibited from accepting more than the 
usual and customary value thereof,(9) and he is required to 
disclose honorariums from a single source aggregating $300 or 
more.(10)
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 7. Rule XLIII clause 4, House Rules and Manual Sec. 939 (1973).
            The Code of Conduct was adopted in the 90th Congress (see 
        Sec. 1.1, infra). For matters relating to the Code of Conduct, 
        see Ch. 12, infra.
 8. Rule XLIII clauses 6, 7, House Rules and Manual Sec. 939 (1973). 
        For disclosure of campaign expenditures, see Ch. 8, infra.
 9. Rule XLIII clause 5, House Rules and Manual Sec. 939 (1973) 
        prohibits Members from receiving more than the ``usual and 
        customary value'' for making a speech, writing for publication, 
        or other similar activity. The rule was adopted in the 90th 
        Congress (see Sec. 1.1, infra).
10. Rule XLIV, part A, clause 3(d) (financial disclosure), House Rules 
        and Manual Sec. 940 (1973). The portion of the rule relating to 
        disclosure of honorariums was adopted in the 91st Congress (see 
        Sec. 1.2, infra).
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    By statute, Congress has consented, pursuant to article I, section 
9, clause 8, to the acceptance by a federal employee of a foreign 
decoration awarded him, subject to the approval of the division of the 
government in which he is employed and the concurrence of the Secretary 
of State.(11) When

[[Page 659]]

such an award is tendered to a Member of the House, it is the Speaker's 
function to approve or disapprove of the accepting and wearing of the 
award.(12) In one instance where the Speaker himself was 
tendered such an award, a private law was enacted so as not to place 
him in the position of reviewing his own application.(13)
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11. 5 USC Sec. 7342(d) approves a decoration ``tendered in recognition 
        of active field service in time of combat operations or awarded 
        for other outstanding or unusually meritorious performance.'' 
        In the absence of the requisite approval and concurrence, the 
        decoration must be deposited as the property of the United 
        States. See 22 USC Sec. 2625 for the disposal of nonapproved 
        decorations.
12. See House Rules and Manual Sec. 159 (comment to U.S. Const. art. I, 
        Sec. 9, clause 8) (1973).
13. See Sec. 1.4, infra.
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    An incidental privilege drawn from statute is the right of a 
Member, Delegate, and the Resident Commissioner to nominate persons for 
appointment to the United States military academies.(14) 
Their power extends to nominating alone, as the power to appoint is 
held by the President.(15)
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14. The principle provisions are 10 USC Sec. 4342 (United States 
        Military Academy), 10 USC Sec. 6954 (United States Naval 
        Academy), and 10 USC Sec. 9342 (United States Air Force 
        Academy).
            For an occasion where a Member resigned from the House 
        under threat of expulsion for allegedly having sold 
        appointments to military academies, see 2 Hinds' Precedents 
        Sec. 1273. The House excluded him when he was re-elected to the 
        same Congress (1 Hinds' Precedents Sec. 464).
15. ``All cadets are appointed by the President.'' 10 USC Sec. 4342(d); 
        10 USC Sec. 9342(d). ``Midshipmen at the Naval Academy shall be 
        appointed by the President alone.'' 10 USC Sec. 6953. The 
        latter provision was passed on Aug. 10, 1956, 70 Stat. 429, Ch. 
        1041, to make clear that the appointment power rested in the 
        President alone. See note to 10 USCA Sec. 6953.
            See also Walbach v U.S., 93 Ct. Cl. 494 (1941), holding 
        that Members of Congress have no power of appointment to the 
        Military Academy, but can only nominate for positions.
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    Since 1964, each Congressman has been entitled to a maximum quota 
of five nominated positions in each of the academies at any one 
time.(16) The Delegate from the District of Columbia and the 
Resident Commissioner from Puerto Rico are entitled to nominate for 
five openings,(17) and the Delegates from Guam and the 
Virgin Islands are entitled to nominate for one opening.(18) 
Members may request from the secretary of the respective branch of the 
armed services the name of the

[[Page 660]]

Congressman or other nominating authority responsible for the 
nomination of a named individual to an academy.(19)
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16. 10 USC Sec. 4342(a)(4) (Military Academy); 10 USC Sec. 6954(a) (4) 
        (Naval Academy); 10 USC Sec. 9342 (a) (4) (Air Force Academy).
17. 10 USC Sec. 4342(a) (5), (7) (Military Academy); 10 USC 
        Sec. 6954(a) (5), (7) (Naval Academy); 10 USC Sec. 9342(a) (5), 
        (7) (Air Force Academy).
18. 10 USC Sec. 4342(a) (6), (9) (Military Academy); 10 USC 
        Sec. 6954(a) (6), (9) (Naval Academy); 10 USC Sec. 9342(a) (6), 
        (9) (Air Force Academy).
19. 10 USC Sec. 4342(h) (Military Academy); 10 USC Sec. 6954(e) (Naval 
        Academy); 10 USC Sec. 9342(h) (Air Force Academy).
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     The Members are also allotted quotas for nomination of persons to 
the Merchant Marine Academy, depending on state 
population.(20)
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20. See 46 USC Sec. 1126(b)(1).
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                            Cross References
Rights and status of Members before being sworn, see Ch. 1, supra 
    (assembly of Congress) and Ch. 2, supra (enrolling Members and 
    administering the oath).
Number and apportionment of Members, see Ch. 8, infra.
Rights and duties of Members in committees, see Ch. 17, infra.
Conduct, punishment, censure, and expulsion of Members, see Ch. 12, 
    infra.
Status of Members-elect and Delegates-elect, see Ch. 2, supra.
Resignation of Members, see Ch. 37, infra.
Personal privilege of Members, see Ch. 11, infra.
Elections and campaigns of Members, see Ch. 8 and Ch. 9, infra.
Party organization and Members, see Ch. 3, supra.

                          Collateral Reference
Senate Report, Armed Services Committee, Report Relating to the 
    Nomination and Selection of Candidates for Appointment to the 
    Military, Naval, and Air Force Academies, 88th Cong. 2d Sess. 
    (1964).                          -------------------

Gifts, Awards, and Honorariums

Sec. 1.1 The House adopted in the 90th Congress a standing rule 
    restricting the acceptance of gifts and honorariums by Members.

    On Apr. 3, 1968, the House passed House Resolution 1099, reported 
from the Committee on Standards of Official Conduct, providing for a 
Code of Official Conduct to become part of the rules of the 
House.(1) Clause 4 of the resolution prohibited a Member (or 
officer or employee of the House) from accepting a gift of 
``substantial'' value from persons, corporations, or organizations 
having a direct interest in legislation before Congress.(2) 
Clause 5 of the resolution prohibited a Member (or officer or employee 
of

[[Page 661]]

the House) from accepting an honorarium in excess of the usual and 
customary value of such services.(3)
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 1. 114 Cong. Rec. 8811, 90th Cong. 2d Sess. Debate on the resolution 
        begins at p. 8777.
 2. Rule XLIII clause 4, House Rules and Manual Sec. 939 (1973). When 
        the House was considering the resolution, Charles M. Price 
        (Ill.), Chairman of the Committee on Standards of Official 
        Conduct, explained clause 4 at 114 Cong. Rec. 8878.
 3. Rule XLIII clause 5, House Rules and Manual Sec. 939 (1973). The 
        Chairman of the Committee on Standards of Official Conduct 
        explained clause 5 at 114 Cong. Rec. 8778, 8779.
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Sec. 1.2 The House amended in the 91st Congress the rules relating to 
    financial disclosure to require disclosure by Members of certain 
    honorariums.

    On May 26, 1970, the House passed House Resolution 796, reported by 
the Committee on Standards of Official Conduct, amending standing Rule 
XLIV on financial disclosure.(4) One section of the 
resolution amended paragraph 3 of part A of Rule XLIV by adding the 
requirement that Members (or officers and employees of the House) 
disclose honorariums from a single source aggregating $300 or 
more.(5)
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 4. 116 Cong. Rec. 17020, 91st Cong. 2d Sess. Debate on the resolution 
        begins at p. 17013.
 5. Rule XLIV, part A, clause 3(d), House Rules and Manual Sec. 940 
        (1973). Charles M. Price (Ill.), Chairman of the Committee on 
        Standards of Official Conduct, explained the amendment at 116 
        Cong. Rec. 17014.
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Receipt of Foreign Awards

Sec. 1.3 Before Congress consented by statute to the acceptance by 
    federal employees of foreign decorations,(6) the House 
    practice was to pass bills authorizing named Members to accept and 
    wear awards tendered by foreign governments.
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 6. By the Foreign Gifts and Decorations Act of 1966, Pub. L. No. 89-
        673, 80 Stat. 952, as amended, Pub. L. No. 90-83, 81 Stat. 208 
        (codified as 5 USC Sec. 7342), Congress has granted its consent 
        to the accepting, retaining, and wearing by a federal employee 
        of a decoration tendered in recognition of active field service 
        or awarded for other outstanding or unusually meritorious 
        performance, subject to the approval of his employer and to the 
        concurrence of the Secretary of State.
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    On July 23, 1956,(7) the House passed H.R. 12358, 
discharged from the Committee on Foreign Affairs. The bill authorized 
four Members of the House to accept and wear the award of the Cross of 
Grand Commander of the Royal Order of the Phoenix, tendered by the 
Government of the Kingdom of Greece. The bill also provided that 
notwithstanding contrary provisions of the United States Code, the said 
Members could

[[Page 662]]

wear and display such decorations.
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 7. 102 Cong. Rec. 14121, 14122, 84th Cong. 2d Sess.
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    Similarly, on July 25, 1956,(8) the House passed H.R. 
12396 authorizing a Member to accept and wear the award of the medal 
for distinguished military service, tendered by the President of the 
Republic of Cuba
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 8. 102 Cong. Rec. 14557, 14558, 84th Cong. 2d Sess.
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    Again, on July 25, 1956,(9) the House authorized by H.R. 
12408 two Members of the House and an ambassador to accept and wear the 
award of the Order Al Merito della Republica Italiana tendered by the 
Government of the Republic of Italy.
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 9. 102 Cong. Rec. 14564, 84th Cong. 2d Sess.
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Sec. 1.4 Where the Speaker was tendered a decoration from a foreign 
    country, the House agreed to a joint resolution authorizing him to 
    accept and wear the decoration, in order to avoid a conflict of 
    interest.

    On Dec. 21, 1970,(10) the House passed House Joint 
Resolution 1420, authorizing Speaker John W. McCormack, of 
Massachusetts, to accept and wear an award conferred by the Government 
of the Republic of Italy. The resolution stated in section 2 that the 
Speaker could wear and display the decoration notwithstanding 5 USC 
Sec. 7342 or any other provision of law to the contrary.
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10. 116 Cong. Rec. 43068, 91st Cong. 2d Sess.
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    Parliamentarian's Note: 5 USC Sec. 7342 provides for the granting 
of the consent of Congress to officers and employees of the government 
to accept certain gifts and decorations from foreign governments under 
enumerated conditions. Under section 6 of that statute, the Speaker 
must approve the presentation of such awards to Members of the House. 
In this instance the House passed the resolution to avoid a possible 
conflict wherein the Speaker would approve an award to himself.

Communications With Executive Branch

Sec. 1.5 The Committee on Standards of Official Conduct, under 
    authority of the House rules, has issued guidelines for Members and 
    employees in communicating with federal agencies on constituent 
    matters.(11)
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11. Under Rule XI clause 19(e) (4), House Rules and Manual Sec. 720 
        (1973), the Committee on Standards of Official Conduct may 
        issue, on request, advisory opinions with respect to the 
        general propriety of any current or proposed conduct of a 
        Member or employee.

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[[Page 663]]

    On Jan. 26, 1970, Charles M. Price, of Illinois, the Chairman of 
the Committee on Standards of Official Conduct, inserted in the Record 
an advisory opinion which established guidelines for Members and 
employees in communicating with departments and agencies of the 
executive branch in relation to problems and complaints of 
constituents.(12)
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12. 116 Cong. Rec. 1077, 91st Cong. 2d Sess.; see also Ch. 12, infra.
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Standing of Member-elect to Sue House Officer

Sec. 1.6 The Speaker announced the institution of a suit by an excluded 
    Member-elect to enjoin the Speaker and other defendants from 
    enforcing the resolution excluding the plaintiff from the House, 
    and seeking a writ of mandamus directing the Speaker to administer 
    him the oath of office as a Member of the 90th Congress.

    On Mar. 9, 1967,(13) Speaker John W. McCormack, of 
Massachusetts, informed the House that a summons had been issued, in 
connection with a suit brought by Mr. Adam C. Powell, Jr., of New York, 
and by other parties plaintiff, against Mr. McCormack and against the 
following Members and officers of the House: Carl Albert, of Oklahoma, 
Majority Leader, Gerald R. Ford, of Michigan, Minority Leader, Mr. 
Emanuel Celler, of New York, Mr. Arch A. Moore, Jr., of West Virginia, 
W. Pat Jennings, Clerk, Zeake W. Johnson, Jr., Sergeant at Arms, and 
William M. Miller, Doorkeeper.
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13. 113 Cong. Rec. 6035, 90th Cong. 1st Sess.
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    The summons and the complaint were inserted in the Congressional 
Record.(14) The summons prayed for an injunction against 
enforcement of House Resolution 1 of the 90th Congress, excluding Mr. 
Powell from the House of Representatives, and sought a writ of mandamus 
directing the Speaker to administer Mr. Powell the oath of office as a 
Member of the Congress.(15) The Supreme Court later held, in 
the final determination of the suit referred to by the Speaker, that 
Mr. Powell was improperly excluded from the House.(16)
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14. Id. at pp. 6035-40.
15. Id. at p. 6038.
16. Powell v McCormack, 395 U.S. 486 (1971), discussed in Sec. 9, 
        infra.
            For other briefs and memoranda relating to the suit brought 
        by Mr. Powell, see 113 Cong. Rec. 8729-62, 90th Cong. 1st 
        Sess., Apr. 10, 1967.

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[[Page 664]]

Standing of Members to Sue in Representative Capacity

Sec. 1.7 The Members of Congress have standing to sue in their 
    representative capacity where the suit would enable them to inquire 
    into certain actions in the discharge of their constitutional 
    duties regarding legislation.

    On May 25, 1971, Mr. Parren J. Mitchell, of Maryland, was 
recognized, under a previous order of the House, to address the House 
for 20 minutes.(17) Mr. Mitchell informed the House that he 
and 12 other Members of the House had filed on Apr. 7, 1971, a suit in 
a U.S. District Court asserting that the war in Indochina was illegal 
because it lacked a decision by Congress to fight such war.
---------------------------------------------------------------------------
17. 117 Cong. Rec. 16846, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    Mr. Mitchell then inserted in the Record copies of the complaint 
and all briefs filed in that action. The complaint indicated that Mr. 
Mitchell and the other Members were filing suit in their official 
capacity as Representatives in Congress.
    In Mitchell v Laird, the court, in upholding the standing of the 
Members of the House to bring the suit in their representative 
capacity, said:

        However, plaintiffs are not limited by their own concepts of 
    their standing to sue. We perceive that in respects which they have 
    not alleged they may be entitled to complain. If we, for the 
    moment, assume that defendants' actions in continuing the 
    hostilities in Indo-China were or are beyond the authority 
    conferred upon them by the Constitution, a declaration to that 
    effect would bear upon the duties of plaintiffs to consider whether 
    to impeach defendants, and upon plaintiffs' quite distinct and 
    different duties to make appropriations to support the hostilities, 
    or to take other legislative actions related to such hostilities, 
    such as raising an army or enacting other civil or criminal 
    legislation. In our view, these considerations are sufficient to 
    give plaintiffs a standing to make their complaint. Cf. Flast v 
    Cohen, 392 U.S. 83 (1968); Association of Data Processing Service 
    Organizations, Inc. v Camp, 397 U.S. 150 (1970); Barlow v Collins, 
    397 U.S. 159 (1970).(18)
---------------------------------------------------------------------------
18. See Mitchell v Laird, 488 F2d 611 (D.C. Cir. 1973).
            For other decisions relating to standing to file suit in an 
        official capacity, see Reed et al. v The County Commissioners, 
        277 U.S. 376 (1928); Coleman v Miller, 407 U.S. 433 (1939).
---------------------------------------------------------------------------

    On Jan. 26, 1970,(19) Mr. Jerry L. Pettis, of 
California, addressed the House in relation to a brief which he and 31 
other Members had filed in the Federal Appellate Court in the District 
of Columbia

[[Page 665]]

in a case brought against the Civil Aeronautics Board. Mr. Pettis and 
the other Members had asked the court to reverse the decision of the 
board that had recently allowed all domestic interstate airlines to put 
fare increases into effect. The brief and memoranda filed by those 
Members, inserted in the Record,(20) stated that 
``petitioners are proceeding in their capacities as users of the 
airways and Representatives of their respective constituencies and of 
other members of the public who travel by air.'' (1)
---------------------------------------------------------------------------
19. 116 Cong. Rec. 1089, 1090, 91st Cong. 21 Sess.
20. Id. at pp. 1089 et seq.
 1. Id. at p. 1090.
---------------------------------------------------------------------------

    On June 23, 1971, there was inserted in the Record by Mr. Robert C. 
Eckhardt, of Texas, a brief in support of a motion for intervention in 
an action in the United States District Court for the District of 
Columbia.(2) The case involved the application by the U.S. 
government for an injunction against the publication by the Washington 
Post of a Defense Department test study on the Vietnam 
conflict.(3) The brief stated that the Members of Congress 
had standing to sue as intervenors because of their ``interest in not 
being deprived of information which would normally flow to them but for 
an intervening act of government restraining that flow.''
---------------------------------------------------------------------------
 2. 117 Cong. Rec. 21750-54, 92d Cong. 1st Sess.
 3. Civil Action No. 1235-71, U.S. District Court for the District of 
        Columbia. The controversy was resolved by the Supreme Court in 
        N.Y. Times Co. v U.S., 403 U.S. 713 (1971), where the court 
        ruled the federal government could not restrain publication of 
        the information.
---------------------------------------------------------------------------

    On June 28, 1971, Mr. Eckhardt inserted in the Congressional Record 
a second brief on the same case, filed on behalf of 27 Members of 
Congress in opposition to the injunction.(4) The brief 
described the interest of the Members of Congress in the suit as 
follows:
---------------------------------------------------------------------------
 4. Mr. Eckhardt's introduction of the brief appears at 117 Cong. Rec. 
        22561, 92( Cong. 1st Sess.
---------------------------------------------------------------------------

        The Members of Congress, on whose behalf this brief is filed, 
    have a vital interest in the outcome of these cases, distinct from 
    that of the plaintiff, the defendants, or the general public. As 
    members of the national legislature they must have information of 
    the kind involved in these suits in order to carry out their law-
    making and other functions in the legislative branch of the 
    government. They seek to vindicate here a legislative right to 
    know.
        In addition as elected representatives of the people in their 
    districts, Members of Congress have a particular and profound 
    interest in having their constituents obtain all the information 
    necessary to perform their functions as voters and citizens. More 
    than any other officials of government, Members

[[Page 666]]

    of Congress have relations with the public that gives them a 
    crucial concern with the public's right to know.(5)
---------------------------------------------------------------------------
 5. Id. at . 22562.
---------------------------------------------------------------------------

Sec. 1.8 In the 92d Congress, a Senator instituted an action in a 
    federal district court to challenge the constitutionality of a 
    pocket veto by the President, and was held to have standing to 
    bring such suit in his representative capacity.

    On Aug. 9, 1972, Senator Edward M. Kennedy, of Massachusetts, 
addressed the Senate in relation to his efforts to seek a judicial 
determination of the legal and constitutional issues surrounding the 
President's pocket veto power. He contended that the action of the 
President in withholding his approval of the Family Practice of 
Medicine Act (S. 3418) did not result in a pocket veto because it took 
effect while the Congress was on a brief holiday recess, and not 
adjourned sine die after a Congress or after a session.(6)
---------------------------------------------------------------------------
 6. 118 Cong. Rec. 27457, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

    By unanimous consent, Senator Kennedy inserted in the Congressional 
Record a statement of his contentions, his complaint before the 
District Court for the District of Columbia, and other materials 
relating to the vetoed bill.(7) In the case to which Senator 
Kennedy referred,(8) the United States Court of Appeals for 
the District of Columbia Circuit held, in reliance upon Sierra Club v 
Morton, 405 U.S. 727 (1972), Flast v Cohen, 392 U.S. 83 (1968), 
Association of Data Processing Organizations, Inc. v Camp, 397 U.S. 150 
(1970), Coleman v Miller, 307 U.S. 433 (1939), and Baker v Carr, 369 
U.S. 186 (1962), that the appellee, a United States Senator, had 
standing to maintain a suit, in his capacity as an individual Senator 
who voted in favor of a bill, to challenge the effectiveness of a 
Presidential ``pocket veto'' during an intra-session recess of 
Congress.
---------------------------------------------------------------------------
 7. 118 Cong. Rec. 27457-61, 92d Cong. 2d Sess.
 8. See Kennedy v Sampson, ____F2d____ (D.C. Cir., Aug. 14, 1974).
---------------------------------------------------------------------------

    On the issue of standing, the court concluded that ``appellee's 
object in this lawsuit is to vindicate the effectiveness of his vote. 
No more essential interest could be asserted by a legislator. We are 
satisfied, therefore, that the purposes of the standing doctrine are 
fully served in this litigation.''
    The court then held, on the issue whether the bill allegedly 
pocket-vetoed became a law, that it did become a law, an intra-ses

[[Page 667]]

sion adjournment not preventing the return of a vetoed bill to Congress 
where appropriate arrangements had been made for receipt of 
Presidential messages during the adjournment. (The Secretary of the 
Senate had been authorized by unanimous consent to receive messages 
from the President during the adjournment to a day certain.) 
(9)
---------------------------------------------------------------------------
 9. 116 Cong. Rec. 43221, 91st Cong. 2d Sess., Dec. 22, 1970. See also 
        Ch. 24, infra, for discussion of the veto power generally.
---------------------------------------------------------------------------

Sec. 1.9 The Senate adopted a resolution authorizing payment from its 
    contingent fund of expenses incurred by a Senator as a party in 
    litigation involving the Speech and Debate Clause of the United 
    States Constitution, and providing for the appointment of a select 
    committee to appear as amicus curiae before the United States 
    Supreme Court and to file a brief on behalf of the Senate in the 
    action.

    On Mar. 23, 1972,(10) the Senate discussed its possible 
intervention in the case of Gravel v United States, involving the 
Speech and Debate Clause of the Constitution then pending in the 
Supreme Court of the United States, Senator Maurice R. Gravel, of 
Alaska, being a party thereto. The Senate adopted a resolution (S. Res. 
280) authorizing the President pro tempore, Allen J. Ellender, of 
Louisiana, to appoint Members of the Senate to a committee to seek 
permission to appear as amicus curiae in the case: (11)
---------------------------------------------------------------------------
10. 118 Cong. Rec. 9902, 9907, 9915, 9920, 9921, 92d Cong. 2d Sess.
11. Gravel v United States, 408 U.S. 606 (1972).
---------------------------------------------------------------------------

                                 Resolution
    Authorizing Senate intervention in the Supreme Court proceedings on 
        the issue of the scope of article I, section 6, the so-called 
        speech and debate clause of the Constitution

        Whereas the Supreme Court of the United States on Tuesday, 
    February 22, 1972, issued writs of certiorari in the case of Gravel 
    against United States; and
        Whereas this case involves the activities of the junior Senator 
    from Alaska, Mr. Gravel; and
        Whereas in deciding this case the Supreme Court will consider 
    the scope and meaning of the protection provided to Members of 
    Congress by article I, section 6, of the United States 
    Constitution, commonly referred to as the ``Speech or Debate'' 
    clause, including the application of this provision to Senators, 
    their aides, assistants, and associates, and the types of activity 
    protected; and
        Whereas this case necessarily involves the right of the Senate 
    to govern its own internal affairs and to deter

[[Page 668]]

    mine the relevancy and propriety of activity and the scope of a 
    Senator's duties under the rules of the Senate and the 
    Constitution; and
        Whereas this case therefore concerns the constitutional 
    separation of powers between legislative branch and executive and 
    judicial branches of Government; and
        Whereas a decision in this case may impair the constitutional 
    independence and prerogatives of every individual Senator, and of 
    the Senate as a whole; and
        Whereas the United States Senate has a responsibility to insure 
    that its interests are properly and completely represented before 
    the Supreme Court: Now, therefore, be it
        Resolved, That the President pro tempore of the Senate is 
    hereby authorized to appoint a bipartisan committee of Senators to 
    seek permission to appear as amicus curiae before the Supreme Court 
    and to file a brief on behalf of the United States Senate; and be 
    it further
        Resolved, That the members of this bipartisan committee shall 
    be charged with the responsibility to establish limited legal fees 
    for services rendered by outside counsel to the committee, to be 
    paid by the Senate pursuant to these resolutions; be it further
        Resolved, That any expenses incurred by the Committee pursuant 
    to these resolutions including the expense incurred by the Junior 
    Senator from Alaska as a party in the above mentioned litigation in 
    printing records and briefs for the Supreme Court shall be paid 
    from the contingent fund of the Senate on vouchers authorized and 
    signed by the President pro tempore of the Senate and approved by 
    the Committee on Rules and Administration; be it further
        Resolved, That these resolutions do not express any judgment of 
    the action that precipitated these proceedings; and be it further
        Resolved, That the Secretary of the Senate transmit a copy of 
    these resolutions to the Supreme Court.
        Mr. [Michael J.] Mansfield [of Montana]: Mr. President, there 
    are some recommendations relative to the counsel to be appointed 
    from the Democratic side and three associate counsel to assist the 
    chief counsel. Would the Chair make those nominations at this time 
    on behalf of the majority?
        The President Pro Tempore: Under the resolution just agreed to, 
    the Chair appoints the Senator from North Carolina (Mr. Ervin) 
    chief counsel, and the Senator from Mississippi (Mr. Eastland), the 
    Senator from Rhode Island (Mr. Pastore), and the Senator from 
    Georgia (Mr. Talmadge) as associate counsel.

        The Presiding Officer (Mr. Stafford) subsequently stated: The 
    Chair, on behalf of the President pro tempore, under Senate 
    Resolution 280, makes the following appointments to the committee 
    established by that resolution: The Senator from New Hampshire (Mr. 
    Cotton), the Senator from Colorado (Mr. Dominick), the Senator from 
    Maryland (Mr. Mathias), and the Senator from Ohio (Mr. Saxbe).



 
                               CHAPTER 7
 
                              The Members
 
                            A. INTRODUCTORY
 
Sec. 2. Seniority and Derivative Rights

    Seniority is a Member's length of service in the House or on a

[[Page 669]]

House committee. The seniority system is the traditional practice 
(12) in the House whereby certain prerogatives and positions 
are made available to those Members with the longest continuous service 
in the House or on committee.(13) However, the seniority 
system as such is nowhere codified and is only mentioned collaterally 
in the House rules; (14) it can be changed by the House or 
modified by the party caucuses.(15)
---------------------------------------------------------------------------
12. For detailed descriptions of the practice and its origins, see 
        Celler, The Seniority Rule in Congress, Western Poll Quar. 
        (Mar. 1961); Goodwin, The Seniority System in Congress, Am. 
        Poll Sci. Rev. (June 1959); Polsby, Gallaher, and Rundquist, 
        The Growth of the Seniority System in the U.S. House of 
        Representatives, Am. Poll Sci. Rev. (Sept. 1969).
            Congressional hearings have focused on the seniority system 
        and proposals for change. Hearings of the Joint Committee on 
        the Organization of Congress, 79th Cong. 1st Sess. (1945); 
        hearings of the Joint Committee on the Organization of 
        Congress, 89th Cong. 1st Sess. (1965); hearings of the Special 
        Subcommittee on Legislative Reorganization of the House 
        Committee on Rules, 91st Cong. 1st Sess. (1970). For a critical 
        analysis of the system by an ex-Member, see 116 Cong. Rec. 
        26034-39. 91st Cong. 2d Sess., July 28, 1970.
13. In assigning office suites, ``longest continuous service'' refers 
        not only to present consecutive service but also to a past 
        period of service interrupted by a period of nonmembership. 
        (See Sec. 2.1, infra).
            In computing committee seniority, the Committee on 
        Committees may credit a Member for past interrupted service on 
        the committee to which he has been assigned (see Sec. 2.2, 
        infra).
14. Rule X clause 4, House Rules and Manual Sec. 672 (1973) provides 
        for the Member next in rank on a standing committee to act as 
        chairman in the latter's absence.
            The House rejected proposed amendments to the Legislative 
        Reorganization Act of 1970 which would have altered and 
        codified seniority as a factor in the selection of committee 
        chairmen (see Sec. 2.4, infra).
15. For demotions in seniority by the House, see Sec. Sec. 2.11, 2.12, 
        infra. For seniority demotions by the party, see 
        Sec. Sec. 2.13-2.16, infra.
            For changes implemented by the majority and minority party 
        caucuses in the 92d and subsequent Congresses modifying strict 
        seniority practices in the selection of committee chairmen, see 
        Ch. 3, supra, and Ch. 17, infra.
            One party has refused to interfere with the prerogative of 
        the opposing party caucus in selecting a committee chairman on 
        the basis of seniority. 117 Cong. Rec. 1709-13, 92d Cong. 1st 
        Sess., Feb. 4, 1971.
---------------------------------------------------------------------------

    There are two types of seniority--congressional seniority, which 
relates to the length of service in the House, and committee seniority, 
which relates to the length of consecutive service on a particular 
committee.

[[Page 670]]

    Congressional seniority is computed from the official date that a 
Member begins his service. Therefore, seniority ordinarily dates from 
Jan. 3 of the first Congress to which a Member is elected or re-elected 
after a break in service in the House.(16) Where a Member is 
elected to fill a vacancy, his congressional seniority is computed from 
the date of election.(17) An objection to a Member's right 
to be sworn, later resolved in his favor, does not affect his 
congressional seniority.(18)
---------------------------------------------------------------------------
16. Pursuant to the 25th amendment to the Constitution (ratified Feb. 
        6, 1933), the terms of Members begin on Jan. 3 of the odd-
        numbered years.
17. Cf. 2 USC Sec. 37 (salary begins at election for Member to fill 
        unexpired term) and 2 Hinds' Precedents Sec. 1206 (general 
        discussion of terms of Members elected to fill vacancies).
18. See Ch. 2, supra (rights of Members-elect).
---------------------------------------------------------------------------

    Committee seniority is computed from the date a Member is elected 
to a specific committee. Members-elect whose seats in the House are in 
doubt may be excluded from the resolution electing committees and 
fixing rank thereon, pending resolution of any challenges and 
investigations.(19)
---------------------------------------------------------------------------
19. See Sec. Sec. 2.5, infra (election to committee after resolution of 
        contest), and 2.11, infra (Member-elect excluded pending 
        investigation, elected to no committees, and stripped of 
        chairmanship).
---------------------------------------------------------------------------

    Some of the rights derived from congressional seniority are purely 
ceremonial in nature. For example, a senior Member traditionally 
announces the death of a Member from his state and 
party.(20) Where a delegation of Members is appointed by the 
Speaker for the funeral of an ex-Member, Members are listed in the 
order of their congressional seniority.(1) The dean of the 
House, or the Member with the longest continuous service in the House, 
traditionally administers the oath to the Speaker at the beginning of a 
new Congress.(2)
---------------------------------------------------------------------------
20. See Sec. 2.21, infra.
 1. See Sec. 2.22, infra.
 2. See Sec. 2.20, infra.
---------------------------------------------------------------------------

    Congressional seniority determines the priority of assignment to 
office suites in the office buildings.(3)
---------------------------------------------------------------------------
 3. Preference is given to those Members with longest continuous 
        service in the House. House Rules and Manual Sec. 985 (1973).
            For computation of ``longest continuous service'' as 
        related to the assignment of offices, see Sec. 2.1, infra.
---------------------------------------------------------------------------

    Committee rank and the election of committee chairmen and 
subcommittee chairmen is largely a matter for determination by the 
political party organizations in the House.(4) In computing 
committee

[[Page 671]]

seniority, a party organization may credit not only the present 
consecutive service of a committee member, but also prior interrupted 
service on the same committee.(5)
---------------------------------------------------------------------------
 4. For party organization, see Ch. 3, supra. For committee election 
        and organization, see Ch. 17, infra.
            When an attempt was made by certain members of the majority 
        party to unseat a committee chairman in the 92d Congress, they 
        urged support from the minority party on the floor of the 
        House, in departing from ``the custom of the House, which is 
        that the majority party in the enclaves of their caucus make 
        the determinations and the minority party accepts those 
        decisions.'' 117 Cong. Rec. 1709, 92d Cong. 1st Sess., Feb. 4, 
        1971 (address of Mr. Jerome Waldie [Calif.]). The minority 
        party refused to support the attempt. Id. at p. 1713. During 
        debate on Mr. Waldie's proposal, Mr. James O'Hara (Mich.) 
        stated that ``each party should be free to make its own 
        decisions without hindrance from the other.'' Id. at p. 1711. 
        Mr. James Fulton (Pa.), of the minority party, stated: ``It has 
        been the custom that each party shall select its own people and 
        set the seniority and that they shall select the membership of 
        the various committees and their own officers and that the 
        other party would do the same.'' Id. at p. 1709.
 5. See Sec. 2.2, infra.
---------------------------------------------------------------------------

    Relative committee rank is indicated by the order in which the 
names of Members appear in the resolution which names Members to a 
standing committee.(6) When the committee seniority of a 
Member is not yet determined, or if election contests over his seat are 
pending, vacancies may be left open in the resolution pending the 
determination of such matters.(7)
---------------------------------------------------------------------------
 6. See Sec. 2.3, infra.
 7. See Sec. 2.7, infra.
---------------------------------------------------------------------------

    A Member may be stripped of his congressional seniority or his 
committee seniority for certain improprieties.(8) Thus, in 
the 91st Congress, the House punished a Member for improper conduct in 
past Congresses by reducing his seniority to that of a first-term 
Representative.(9)
---------------------------------------------------------------------------
 8. See Ch. 12, infra.
 9. See Sec. 2.12, infra.
---------------------------------------------------------------------------

                                 Forms

        Form of resolution electing a Member to committee and fixing 
    his rank thereon.

            Resolved, That J. Edward Roush, of Indiana, be, and is 
        hereby elected a Member of the standing committee of the House 
        of Representatives on Science and Astronautics and to rank No. 
        10 thereon.(10)
---------------------------------------------------------------------------
10. 107 Cong. Rec. 10391, 87th Cong. 1st Sess., June 14, 1961.
---------------------------------------------------------------------------

                            Cross References
Seniority and party organization, see Ch. 3, supra.
Committee organization and seniority, see Ch. 17, infra.
Conference appointments and seniority, see Ch. 33 infra.

                         Collateral References
Celler, The Seniority Rule in Congress, Western Political Quarterly 
    (Mar. 1961).

[[Page 672]]

Goodwin, The Seniority System in Congress, American Political Science 
    Review (June 1959).
Hearings of the Joint Committee on the Organization of Congress, 79th 
    Cong. 1st Sess. (Wash. 1945); Hearings of the Joint Committee on 
    the Organization of Congress, 89th Cong. 1st Sess. (Wash. 1965); 
    Hearings of the Special Subcommittee on Legislative Reorganization 
    of the House Committee on Rules, 91st Cong. 1st Sess. (Wash. 1970).
Polsby, The Growth of the Seniority System in the United States House 
    of Representatives, American Political Science Review (Sept. 1969).
Bolling, Power in the House, E.P. Dutton & Co., Inc. (N.Y. 1968).
Democratic Study Group, The Seniority System in the United States House 
    of Representatives, Special Report (Feb. 25, 
    1970).                          -------------------

Computing Seniority

Sec. 2.1 In computing seniority for the assignment of office suites, 
    ``longest continuous service'' is interpreted as the longest period 
    of uninterrupted service as a Member.

    On Mar. 2, 1967,(11) the Chairman of the House Office 
Building Commission, Speaker John W. McCormack, of Massachusetts, 
announced a determination as to the meaning of the term ``longest 
continuous service'' in relation to seniority for assignment of office 
suites.
---------------------------------------------------------------------------
11. 113 Cong. Rec. 5218, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. McCormack: Mr. Speaker, for the information of the Members, 
    I include an action recently taken by the House Office Building 
    Commission:

                  Assignment of Rooms, House Office Buildings

        In connection with assignment of rooms to Members of the House 
    of Representatives in the House Office Buildings, 40 U.S.C. 178 
    provides, in part, as follows:
        ``If two or more requests are made for the same vacant room, 
    preference shall be given to the Representative making the request 
    who has been longest in continuous service as a Member and Member-
    elect of the House of Representatives.''
        The question was raised before the House Office Building 
    Commission as to whether the wording ``longest continuous service'' 
    should refer to any period of continuous service whether or not 
    such continuous service occurred before or after a break in service 
    in the House.
        At meeting of February 27, 1967, the House Office Building 
    Commission unanimously ruled on this point, as follows:
        ``The term `longest continuous service' as used in 40 U.S.C. 
    178, governing seniority in assignment of rooms in the House Office 
    Buildings, is held to refer to the longest period of uninterrupted 
    service as a Member and Member-elect of the House of 
    Representatives (not necessarily the last period of uninterrupted 
    service as held

[[Page 673]]

    in Cannon's Precedents, Vol. 8, page 981, Sec. 3651).''
        This ruling is effective February 27, 1967 and is being 
    submitted as a matter of record for the information of all Members 
    of the House of Representatives.

Sec. 2.2 In computing committee seniority, a party may credit a Member 
    for prior interrupted service in the House.

    In the 89th Congress, Mr. Glenn R. Davis, of Wisconsin, was elected 
to the Committee on Appropriations, to rank fifth from the 
bottom.(12) Mr. Davis began service in the 89th Congress 
after a break in service extending from the 85th Congress to the 88th 
Congress; prior to that break he had served in the House from the 80th 
Congress through the 84th Congress.(13)
---------------------------------------------------------------------------
12. 111 Cong. Rec. 991, 89th Cong. 1st Sess., Jan. 21, 1965.
13. Biographical Directory of the American Congress 1774-1971, S. Doc. 
        No. 92-8, 92d Cong. 1st Sess. (1971).
---------------------------------------------------------------------------

    Mr. Davis was elected to higher committee rank in the 89th Congress 
than four Members each of whom had served for at least one term 
immediately preceding the 89th Congress.(14)
---------------------------------------------------------------------------
14. 111 Cong. Rec. 991, 89th Cong. 1st Sess., Jan. 21, 1965. For the 
        prior service of those Members listed below Mr. Davis, see the 
        Biographical Directory of the American Congress 1774-1971, S. 
        Doc. No. 92-8, 92d Cong. 1st Sess. (1971).
---------------------------------------------------------------------------

Sec. 2.3 Committee rank is indicated by the order in which the names of 
    Members appear in the resolution electing them to a standing 
    committee.

    On Feb. 3, 1969,(15) the House made a correction in the 
election of Members to the standing Committee on Veterans' Affairs, 
since the original resolution which was adopted contained an error in 
the order in which names were listed:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 2433, 2434, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Gerald R. Ford [of Michigan]: Mr. Speaker, I ask unanimous 
    consent to vacate the proceedings whereby the House agreed to House 
    Resolution 176 on January 29, and ask for its immediate 
    consideration with an amendment which I send to the desk.
        The Speaker: (16) Is there objection to the request 
    of the gentleman from Michigan?
---------------------------------------------------------------------------
16. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        There was no objection.
        The Clerk read the resolution, as follows:

                                H. Res. 176

            Resolved, That the following named Members be, and they are 
        hereby, elected members of the following standing committees of 
        the House of Representatives: . . .

                       Committee on Veterans' Affairs

            Charles M. Teague, California; E. Ross Adair, Indiana; 
        William H.

[[Page 674]]

        Ayres, Ohio; John P. Saylor, Pennsylvania; Seymour Halpern, New 
        York; John J. Duncan, Tennessee; John Paul Hammerschmidt, 
        Arkansas; William L. Scott, Virginia; Margaret M. Heckler, 
        Massachusetts; John M. Zwach, Minnesota; Robert V. Denney, 
        Nebraska. . . .

                  amendment offered by mr. gerald r. ford

        The Clerk read as follows:

            Amendment offered by Mr. Gerald R. Ford: On page 7, lines 5 
        and 6, strike out ``E. Ross Adair, Indiana; William H. Ayres, 
        Ohio;'' and insert: ``William H. Ayres, Ohio; E. Ross Adair, 
        Indiana;''

        Mr. Gerald R. Ford: Mr. Speaker, my amendment, which has just 
    been read by the Clerk, will correct the seniority standing of the 
    gentleman from Ohio (Mr. Ayres) on the Committee on Veterans' 
    Affairs.
        The amendment was agreed to.

Seniority Considerations in Selecting Chairmen

Sec. 2.4 During consideration of a legislative reorganization act, the 
    House rejected two amendments proposing that seniority need not be 
    the sole consideration in the selection of committee chairmen.

    On July 28, 1970, during consideration of the Legislative 
Reorganization Act of 1970,(17) the House rejected an 
amendment and a substitute amendment proposing that the House consider 
other factors in addition to seniority in the selection of committee 
chairmen.
---------------------------------------------------------------------------
17. 116 Cong. Rec. 26044, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

    The primary amendment had been offered by Mr. Henry S. Reuss, of 
Wisconsin, on July 27, 1970.(18) His amendment read as 
follows:
---------------------------------------------------------------------------
18. Id. at p. 25831.
---------------------------------------------------------------------------

        Sec. 119 Clause 3 of rule X of the rules of the House of 
    Representatives is amended to read as follows:

            3. At the commencement of each Congress, the House shall 
        elect as chairman of each standing committee one of the Members 
        thereof, who need not be the Member with the longest 
        consecutive service on the Committee; in the temporary absence 
        of the Chairman the Member next in rank in the order named in 
        the election of the committee, and so on, as often as the case 
        shall happen, shall act as chairman; and in case of a permanent 
        vacancy in the chairmanship of any such committee the House 
        shall elect another chairman.

    The substitute amendment, offered as a substitute to Mr. Reuss' 
amendment, was offered by Mr. Frederick Schwengel, of Iowa, and read as 
follows: (19)
---------------------------------------------------------------------------
19. Id. at p. 25832.
---------------------------------------------------------------------------

        Sec. 120. Clause 3 of Rule X of the Rules of the House of 
    Representatives is amended to read as follows:

            3. (a) As soon as possible after the commencement of each 
        Congress, the senior member of the majority party on each 
        standing committee shall call an organization meeting of all

[[Page 675]]

        the members of the committee for the purpose of electing the 
        chairman of the committee and the minority leader for the 
        committee. . . .
            (d) The first order of business at any such organization 
        meeting shall be the election of the chairman of the committee. 
        The three most senior members of the committee who are members 
        of the majority party shall be regarded as having been 
        nominated for the office of chairman. Tellers shall be 
        appointed by the temporary chairman, one from among the members 
        of the committee who are members of the majority party and two 
        from among the other members of the committee. Voting shall be 
        confined to members of the majority party, and shall be by 
        secret written ballot.
            (e) After the chairman of the committee has been elected 
        and installed, the next order of business shall be the election 
        of a minority leader for the committee, which shall be 
        accomplished in the same manner as in the case of the election 
        of the chairman except that (1) the tellers shall be appointed 
        by the chairman, two from among the members of the committee 
        who are members of the majority party and one from among the 
        other members of the committee, and (2) voting shall be 
        confined to members of the committee who
        are not members of the majority party. . . .

    After these amendments were of I Bred, and before they were 
rejected by the House, there ensued lengthy debate on the seniority 
system in the House and on possible alternatives to the current 
practice.(20)
---------------------------------------------------------------------------
20. See the Congressional Record insert at 116 Cong. Rec. 26034-39, 
        91st Cong. 2d Sess., July 28, 1970, of a paper written by ex-
        Member John V. Lindsay (N.Y.) on the seniority system in 
        current practice and on proposals for change.
---------------------------------------------------------------------------

Fixing Committee Seniority

Sec. 2.5 When the House has determined the right of a Member to his 
    seat after the organization of the House, the House elects such 
    Member to committee and designates his rank thereon by resolution.

    On June 29, 1961,(1) pursuant to the determination by 
the House on June 14, 1961, that Mr. J. Edward Roush, of Indiana, was 
entitled to a seat,(2) the House adopted the following 
resolution:
---------------------------------------------------------------------------
 1. 107 Cong. Rec. 11797, 87th Cong. 1st Sess.
 2. 107 Cong. Rec. 10391, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

        Resolved, That J. Edward Roush, of Indiana, be, and he is 
    hereby elected a Member of the standing committee of the House of 
    Representatives on Science and Astronautics and to rank No. 10 
    thereon.

Sec. 2.6 Where a senior Member was assigned to the last position on a 
    committee for disciplinary purposes by his party caucus, the House 
    was advised that junior Members subsequently elected to the 
    committee would be placed below the punished Member in rank.

[[Page 676]]

    On Oct. 18, 1966,(3) the House was considering a 
resolution electing a junior Member from New York to the standing 
Committee on Interstate and Foreign Commerce. Mr. John B. Williams, of 
Mississippi, who had been assigned the last position on that committee 
by the Democratic Caucus at the convening of the 89th 
Congress,(4) arose to propound an inquiry. He asked whether 
the freshman Member would go above him or below him in committee rank. 
Mr. Wilbur D. Mills, of Arkansas, who had offered the resolution, 
responded that freshmen Members newly elected to the same committee 
would be placed below Mr. Williams.
---------------------------------------------------------------------------
 3. 112 Cong. Rec. 27486, 89th Cong. 2d Sess.
 4. See Sec. 2.13, infra.
---------------------------------------------------------------------------

Sec. 2.7 The Committee on Committees may report a resolution leaving 
    vacancies on certain standing committees pending further 
    consideration of the assignments and seniority of certain Members.

    On Jan. 23, 1967,(5) the Committee on Committees 
reported House Resolution 165, electing Members to committees but 
leaving certain vacancies on the Committee on Interstate and Foreign 
Commerce.
---------------------------------------------------------------------------
 5. 113 Cong. Rec. 1086, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    One vacancy related to an as yet undecided contested election 
case.(6)
---------------------------------------------------------------------------
 6. The right to a seat of Member-elect Benjamin B. Blackburn (Ga.) was 
        challenged on Jan. 10, 1967, 113 Cong. Rec. 14, 90th Cong. 1st 
        Sess., and had not yet been decided.
---------------------------------------------------------------------------

    The other vacancy related to the undetermined status of Mr. John B. 
Williams, of Mississippi, who had, in the 89th Congress, been stripped 
of his committee seniority and assigned to the last majority position 
on said committee.(7) Mr. Williams had requested the 
committee to refrain assigning him to any committee pending a 
determination by his party caucus of his committee seniority in the 
90th Congress.(8)
---------------------------------------------------------------------------
 7. See Sec. 2.13, infra.
 8. See Sec. 2.16, infra.
---------------------------------------------------------------------------

Correction of Seniority Rankings

Sec. 2.8 The House by unanimous consent fixed the relative rank of two 
    Members on a committee where an error had been made in the original 
    appointment.

    On Jan. 20, 1947,(9) the House agreed by unanimous 
consent to

[[Page 677]]

correct the committee seniority of two members of a committee:
---------------------------------------------------------------------------
 9. 93 Cong. Rec. 481, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Charles A.] Halleck [of Indiana]: Mr. Speaker, in 
    determining seniority on the reorganized Public Lands Committee, 
    into which were merged six previous standing committees of the 
    House, we made an error in the determination of seniority between 
    the gentleman from Colorado [Mr. Rockwell] and the gentleman from 
    North Dakota [Mr. Lemke].
        In order to correct that error and to bring that assignment of 
    seniority in line with other similar assignments adopted by the 
    Committee on Committees, I ask unanimous consent to correct the 
    list of members of the Committee on Public Lands by placing the 
    gentleman from Colorado [Mr. Rockwell] No. 4 thereon and the 
    gentleman from North Dakota [Mr. Lemke] No. 5 thereon.
        The Speaker: (10) Is there objection to the request 
    of the gentleman from Indiana [Mr. Halleck]?
---------------------------------------------------------------------------
10. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------

        There was no objection.

Sec. 2.9 On one occasion, the House adopted a resolution electing a 
    Member retroactively to a committee and fixing his rank on such 
    committee accordingly.

    On Nov. 2, 1939,(11) the House adopted the following 
resolution:
---------------------------------------------------------------------------
11. 85 Cong. Rec. 1283, 76th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That E.C. Gathings, of Arkansas, be, and he is 
    hereby, elected a member of the standing committee of the House of 
    Representatives on Claims as of June 2, 1939, and shall take rank 
    accordingly.

    Parliamentarian's Note: The House took such action because the 
Member in question had served on the committee for a period of months 
under the misapprehension, also held by the committee, that he was a 
duly-elected member of that committee.

Sec. 2.10 On motion of the Minority Leader, the House agreed by 
    unanimous consent to vacate past proceedings where by it had agreed 
    to a resolution electing minority members to committees, and then 
    reconsidered the resolution with an amendment changing the order of 
    names in order to correct seniority.

    On Feb. 3, 1969,(12) Gerald R. Ford, of Michigan, the 
Minority Leader of the House, asked unanimous consent to vacate the 
proceedings whereby the House had agreed to House Resolution 176, 
electing Members to the Committee on Veterans' Affairs. Mr. Ford 
offered an amendment changing the order of the names, and therefore the 
seniority of members, in order to correct the

[[Page 678]]

seniority standing of Mr. William H. Ayres, of Ohio. The resolution as 
amended was agreed to by the House.
---------------------------------------------------------------------------
12. 115 Cong. Rec. 2433, 2434, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Demotions in Committee or Congressional Seniority

Sec. 2.11 Where a Member-elect was excluded from the House pending a 
    determination of his right to his seat, he was stripped of his 
    chairmanship of the Committee on Education and Labor and not named 
    to any committees.

    On Jan. 23, 1967,(13) the Committee on Committees 
reported a resolution (H. Res. 165) electing Carl D. Perkins, of 
Kentucky, as Chairman of the Committee on Education and Labor, which 
position had formerly been held by Member-elect Adam C. Powell, of New 
York. Mr. Powell's name was not nominated for election to any 
committee. He had been excluded from House membership pending an 
investigation of his right to a seat.(14)
---------------------------------------------------------------------------
13. 113 Cong. Rec. 1086, 90th Cong. 1st Sess.
14. 113 Cong. Rec. 26, 90th Cong. 1st Sess., Jan. 10, 1967.
---------------------------------------------------------------------------

Sec. 2.12 In authorizing a challenged Member-elect to take his seat, 
    the House may discipline him for actions in past Congresses by 
    reducing his congressional seniority to that of a first-term 
    Congressman.

    On Jan. 3, 1969, the House authorized Adam C. Powell, Member-elect 
from New York, whose seat had been challenged,(15) to take 
the oath of office and to be seated as a Member of the House by House 
Resolution 2.(16) The resolution provided for deductions 
from Mr. Powell's salary as punishment for past conduct, and also 
provided as follows:
---------------------------------------------------------------------------
15. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
16. Id. at p. 33.
---------------------------------------------------------------------------

        (3) That as further punishment 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 91st Congress.

Sec. 2.13 Two Members were stripped of their committee seniority in the 
    89th Congress by their party.

    In the 89th Congress, the Democratic Caucus adopted a resolution on 
Jan. 2, 1965, directing the Committee on Committees to demote in 
committee rank Mr. John B. Williams, of Mississippi, and Mr. Albert W. 
Watson, of South Carolina. (Both of those Members had allegedly 
supported

[[Page 679]]

the Presidential nominee of the Republican Party.) (17)
---------------------------------------------------------------------------
17. See the remarks in the Senate of Senator Strom Thurmond (S.C.) 
        analyzing the action of the House Democratic Caucus and the 
        activities of Mr. Williams and of Mr. Watson which precipitated 
        that party action. 111 Cong. Rec. 758, 759, 89th Cong. 1st 
        Sess., Jan. 15, 1965.
---------------------------------------------------------------------------

    Mr. Williams had ranked second on the Committee on Interstate and 
Foreign Commerce (18) and fifth on the Committee on the 
District of Columbia in the 88th Congress.(19) In the 89th 
Congress, he was demoted in seniority by being elected to the last 
majority position on both of those committees.(20)
---------------------------------------------------------------------------
18. 109 Cong. Rec. 506, 88th Cong. 1st Sess., Jan. 17, 1963.
19. 109 Cong. Rec. 505, 88th Cong. 1st Sess., Jan. 17, 1963.
20. 111 Cong. Rec. 809, 810, 89th Cong. 1st Sess., Jan. 18, 1965.
---------------------------------------------------------------------------

    Mr. Watson had ranked last on the Committee on Post Office and 
Civil Service in the 88th Congress.(1) In the 89th Congress, 
he was elected to the next-to-last position on the Committee on 
Interstate and Foreign Commerce.(2) (Mr. Watson later 
resigned from the House, was re-elected as a Republican, and was 
elected as a minority member of the Committee on Interstate and Foreign 
Commerce.) (3)
---------------------------------------------------------------------------
 1. 109 Cong. Rec. 506, 88th Cong. 1st Sess., Jan. 17, 1963.
 2. 111 Cong. Rec. 992, 89th Cong. 1st Sess., Jan. 21, 1965.
 3. See Sec. 2.17, infra.
---------------------------------------------------------------------------

Sec. 2.14 A Member who had refused to support the Presidential nominee 
    of his party was reduced in committee seniority by his party in the 
    91st Congress when his name was placed at the bottom of a list of 
    members of his party elected to one of the standing committees.

    On Jan. 29, 1969,(4) the House adopted a resolution 
electing Members to the standing Committee on Agriculture. The name of 
Mr. John R. Rarick, of Louisiana, was placed at the bottom of the list, 
pursuant to the determination of the Democratic Caucus to punish him 
for refusing to support the Presidential nominee of the Democratic 
Party. Under the listing of the resolution, he became the lowest 
ranking majority member of the Committee on Agriculture.
---------------------------------------------------------------------------
 4. 115 Cong. Rec. 2083, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 2.15 On one occasion, the Committee on Committees left a vacancy 
    on a standing committee pending further consideration of the com

[[Page 680]]

    mittee assignments and seniority of a Member whose party had 
    stripped him of committee seniority in the preceding Congress.

    On Jan. 23, 1967,(5) the Committee on Committees 
reported to the House a resolution leaving a vacancy on the Committee 
on Interstate and Foreign Commerce because of the undetermined status 
of Mr. John Bell Williams, of Mississippi, who had, in the previous 
Congress, been stripped of his committee seniority and assigned to the 
last majority position on said committee.(6)
---------------------------------------------------------------------------
 5. 113 Cong. Rec. 1086, 90th Cong. 1st Sess.
 6. See Sec. 2. 13, Supra.
---------------------------------------------------------------------------

Sec. 2.16 In one instance a Member requested the Committee on 
    Committees to refrain from assigning him to any House committees 
    pending a determination by his party caucus of his committee 
    seniority.

    On Jan. 23, 1967,(7) there was included in the Record a 
letter from Mr. John Bell Williams, of Mississippi, to the Chairman of 
the Democratic Committee on Committees, requesting such committee to 
postpone assigning him to any House committees pending a determination 
by the Democratic Caucus of his seniority status.
---------------------------------------------------------------------------
 7. 113 Cong. Rec. 1087, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: Mr. Williams had been stripped of his 
committee seniority during the 89th Congress and as of Jan. 23, 1967, 
his committee seniority in the 90th Congress had not yet been acted 
upon by the Democratic Caucus.

Effect of Change in Party Affiliation

Sec. 2.17 A Member who was stripped of committee seniority by his party 
    caucus resigned from Congress, joined the opposition party, was re-
    elected to Congress, and was elected to the same committee.

    On Jan. 21, 1965,(8) Mr. Albert W. Watson, of South 
Carolina, was elected to the next-to-last position in rank on the 
Committee on Interstate and Foreign Commerce. Mr. Watson had been 
demoted in committee seniority by the House Democratic Caucus because 
of his support of the Republican Presidential candidate.(9)
---------------------------------------------------------------------------
 8. 111 Cong. Rec. 992, 89th Cong. 1st Sess.
 9. See Sec. 2.13, supra.
            See also the remarks of Senator Strom Thurmond (S.C.) on 
        Jan. 15, 1965, 111 Cong. Rec. 758, 759, 89th Cong. 1st Sess., 
        explaining the circumstances under which Mr. Watson was 
        stripped of his seniority.

---------------------------------------------------------------------------

[[Page 681]]

    On Jan. 28, 1965,(10) Mr. Watson resigned his 
congressional seat, to become effective Feb. 1, 1965.
---------------------------------------------------------------------------
10. 111 Cong. Rec. 1452, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    Mr. Watson joined the Republican Party and was re-elected to the 
Congress as a Republican; he took the oath of office on June 16, 
1965.(11)
---------------------------------------------------------------------------
11. 111 Cong. Rec. 13774, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    On June 23, 1965,(12) Mr. Watson was elected to the 
Committee on Interstate and Foreign Commerce on the recommendation of 
the Republican Conference.
---------------------------------------------------------------------------
12. 111 Cong. Rec. 14501, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 2.18 A change in party affiliation by a Senator might necessitate 
    a change in party ratios on certain committees and a loss of seats 
    on some committees for the other party.

    On Sept. 17, 1964,(13) Majority Leader Michael J. 
Mansfield, of Montana, announced that the change in party affiliation, 
from the majority party to the minority party, by Senator Strom 
Thurmond, of South Carolina, might require a change in party membership 
ratios on certain committees, since ratios on Senate committees reflect 
the relative membership of the two parties in the Senate as a whole. 
Senator Mansfield stated that it would appear that the Republicans 
would be entitled to an additional seat on each of the two committees 
on which Senator Thurmond had formerly sat and that the Democrats would 
lose those seats on those committees.
---------------------------------------------------------------------------
13. 110 Cong. Rec. 22369, 88th Cong. 2d Sess.
---------------------------------------------------------------------------

Seniority as Affecting Floor Recognition

Sec. 2.19 The order of recognition to offer amendments is within the 
    discretion of the Chair, but precedent indicates that he should 
    recognize members of the committee handling the pending bill in the 
    order of their committee seniority.

    On July 23, 1970,(14) Chairman Chet Holifield, of 
California, ruled, in answer to a parliamentary inquiry, that he would 
recognize members of a committee handling a pending bill to offer 
amendments in the order of their

[[Page 682]]

seniority. He stated that the order in which amendments may be offered 
to a pending paragraph (open to amendment at any point) is not 
determined by the sequence of lines to which the amendments may relate, 
but by the committee rank of those seeking recognition.(15)
---------------------------------------------------------------------------
14. 116 Cong. Rec. 25635 91st Cong. 2d Sess.
15. For full discussion of priorities of recognition, see Ch. 29, 
        infra.
---------------------------------------------------------------------------

Seniority Considerations and Ceremonial Functions

Sec. 2.20 The Member of the House with longest consecutive service 
    customarily administers the oath to the Speaker at the convening of 
    a new Congress.(16)
---------------------------------------------------------------------------
16. The Member of longest consecutive service is now the ``Dean'' of 
        the House (113 Cong. Rec. 14, 90th Cong. 1st Sess., Jan. 10, 
        1967; 115 Cong. Rec. 15, 91st Cong. 1st Sess., Jan. 3, 1969), 
        although he has sometimes been termed the ``Father'' of the 
        House (2 Hinds' Precedents Sec. 1140; 6 Cannon's Precedents 
        Sec. 6).
            While the Member with longest consecutive service has 
        usually administered the oath to the Speaker in past 
        Congresses, the practice has not always been followed (6 
        Cannon's Precedents Sec. 6).
---------------------------------------------------------------------------

    At the convening of the 90th Congress the Member with the longest 
consecutive service in the House, Mr. Emanuel Celler, of New York, 
administered the oath to the newly-elected Speaker.(17) Mr. 
Celler likewise administered the oath to the Speaker at the opening of 
the 91st Congress.(18)
---------------------------------------------------------------------------
17. 113 Cong. Rec. 14, 90th Cong. 1st Sess., Jan. 10, 1967. As of the 
        convening of the 92d Congress, Mr. Celler had amassed service 
        in 24 consecutive Congresses. Biographical Directory of the 
        American Congress 1774-1971, S. Doc. No. 92-8, 92d Cong. 1st 
        Sess. (1971).
18. 115 Cong. Rec. 15, 91st Cong. 1st Sess., Jan. 3, 1969.
---------------------------------------------------------------------------

    When Mr. Celler was absent on the opening day of the 92d Congress, 
Wright Patman, of Texas, the Member second to him in consecutive 
service, administered the oath to the Speaker.(19)
---------------------------------------------------------------------------
19. 117 Cong. Rec. 13, 92d Cong. 1st Sess., Jan. 21, 1971. As of the 
        beginning of the 92d Congress, Mr. Patman had served for 21 
        consecutive Congresses. Biographical Directory of the American 
        Congress 1774-1971, S. Doc. No. 92-8, 92d Cong. 1st Sess. 
        (1971).
---------------------------------------------------------------------------

Sec. 2.21 The announcement of the death of a sitting Member is normally 
    the prerogative of the senior Member of the deceased's state party 
    delegation in the House.

    On June 23, 1969,(20) Mr. Silvio O. Conte, of 
Massachusetts, the

[[Page 683]]

senior member of the Republican party state delegation from 
Massachusetts, arose to announce to the House the death of Mr. William 
H. Bates, a Republican from Massachusetts.
---------------------------------------------------------------------------
20. 115 Cong. Rec. 16795, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

    Similarly, the death of Senate Minority Leader, Everett M. Dirksen, 
of Illinois. was announced to the House by the senior member of his 
party in his state's House delegation, Mr. Leslie C. Arends, of 
Illinois, on Sept. 8, 1969.(1)
---------------------------------------------------------------------------
 1. 115 Cong. Rec. 24634, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 2.22 When the Speaker appoints a funeral delegation for a deceased 
    Member, he lists, following the state delegation, other appointed 
    Members in the order of their seniority.

    On June 23, 1969,(2) Speaker John W. McCormack, of 
Massachusetts, announced his appointments to the funeral delegation for 
the funeral of a deceased Member of the House. After listing the names 
of the Members from the same state as the deceased Member, the Speaker 
listed the names of 45 other Members of the House, listed in order of 
their congressional seniority.(3)
---------------------------------------------------------------------------
 2.  115 Cong. Rec. 16800, 16801, 91st Cong. 1st Sess.
 3. For other instances where House funeral delegations were listed in 
        order of congressional seniority, see 115 Cong. Rec. 24695, 
        91st Cong. 1st Sess., Sept. 8, 1969; 116 Cong. Rec. 25866, 91st 
        Cong. 2d Sess., July 27, 1970; 116 Cong. Rec. 43770, 91st Cong. 
        2d Sess., Dec. 29, 1970.
---------------------------------------------------------------------------

Senate Practice

Sec. 2.23 In the Senate, prerogative according to seniority practice is 
    a custom, not a rule, and is not always followed.

    On Mar. 2, 1956,(4) Senator Wayne L. Morse, of Oregon, 
in opposing the appointment of a senior Senator to the chairmanship of 
the Senate Judiciary Committee, stated that the seniority practice in 
the Senate is a customary tradition but is not a rule. Senator Morse 
listed three important precedents in the Senate where the Senate did 
not elevate to the chairmanship of a committee the next Senator in line 
in order of seniority.(5)
---------------------------------------------------------------------------
 4. 102 Cong. Rec. 3815, 84th Cong. 2d Sess.
 5. The precedents cited by Senator Morse occurred during the 42d 
        Congress, where Senator Charles Sumner (Mass.) was dropped as 
        Chairman of the Committee on Foreign Relations, during the 68th 
        Congress where Senator Albert B. Cummins (Iowa) was dropped as 
        Chairman of the Committee on Interstate Commerce and during the 
        69th Congress, when Senator Edwin F. Ladd (N.D.) was not 
        designated to the chairmanship of the Committee on Public Lands 
        and Surveys, to which he had seniority under the traditional 
        practice.

---------------------------------------------------------------------------

[[Page 684]]

Sec. 2.24 The Senate may, by unanimous consent, exchange the committee 
    seniority of two Senators pursuant to a request by one of them.

    On Feb. 23, 1955,(6) Senator Styles Bridges, of New 
Hampshire, asked and obtained unanimous consent that his position as 
ranking minority member of the Senate Armed Services Committee be 
exchanged for that of Senator Everett Saltonstall, of Massachusetts, 
the next ranking minority member of that committee, for the duration of 
the 84th Congress, with the understanding that that arrangement was 
temporary in nature, and that at the expiration of the 84th Congress he 
would resume his seniority rights.(7)
---------------------------------------------------------------------------
 6. 101 Cong. Rec. 1930, 1931, 84th Cong. 1st Sess.
 7. Mr. Bridges stated he requested the alteration of seniority 
        ``because last year he [Senator Saltonstall] served as Chairman 
        of the Armed Services Committee, and did a very able job in 
        that capacity; and I desire to show him the courtesy of letting 
        him be a rung higher on the ladder, so to speak, temporarily. . 
        . .'' Id. at p. 1931.
---------------------------------------------------------------------------

    In the succeeding Congress, on Jan. 22, 1957,(8) Senator 
Bridges reiterated that request for the duration of the 85th Congress.
---------------------------------------------------------------------------
 8. 103 Cong. Rec. 835, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

    It was so ordered by the Senate.



                               CHAPTER 7
 
                              The Members
 
                            A. INTRODUCTORY
 
Sec. 3. Status of Delegates and Resident Commissioner

    Delegates and Resident Commissioners are those statutory officers 
who represent in the House the constituencies of territories and 
properties owned by the United States but not admitted to 
statehood.(9) Although the persons holding those offices 
have many of

[[Page 685]]

the attributes of House membership, they are not actual Members of the 
House, since the Constitution provides only for Members or 
representatives of states duly admitted into the Union. The 
Constitution is silent on representation of territories and other 
properties belonging to the United States, although article IV, section 
3, clause 2, grants exclusive sovereignty to the United States over 
such lands.(10)
---------------------------------------------------------------------------
 9. For general discussion of the status of Delegates, see 1 Hinds' 
        Precedents Sec. Sec. 400, 421, 473; 6 Cannon's Precedents 
        Sec. Sec. 240, 243.
            In early Congresses, Delegates were construed only as 
        business agents of chattels belonging to the United States, 
        without policymaking power (1 Hinds' Precedents Sec. 473), and 
        the statutes providing for Delegates called for them to be 
        elected to ``serve'' (i.e., act of July 13, 1787, 1 Stat. 52, 
        Sec. 12), not to ``represent'', which is the language in later 
        statutes (48 USC Sec. 1711 [Guam and Virgin Islands]; Pub. L. 
        No. 91-405, 84 Stat. 852, Sec. 202(a), Sept. 22, 1970 [District 
        of Columbia]). The provision relating to the Resident 
        Commissioner from Puerto Rico, 48 USC Sec. 891, does not define 
        his function and does not explicitly provide for his 
        participation in the House of Representatives.
10. As to jurisdiction over the District of Columbia, U.S. Const. art. 
        I, Sec. 8, clause 17, grants exclusive legislation over the 
        seat of government to the Congress.
---------------------------------------------------------------------------

    The offices of Delegate and Resident Commissioner are created, 
defined, and limited by statute.(11) The first such statute 
was adopted on July 13, 1787, authorizing the election of a Delegate to 
Congress from the territory northwest of the Ohio River.(12) 
The act allowed that Delegate to have a seat in Congress, with the 
right of debating, but not of voting, on the floor of the 
House.(13) The statute creating the office of Resident 
Commissioner did not provide for a seat in the House.(14) In 
succeeding Congresses, the Resident Commissioner was given debating and 
floor rights,(15) and now holds the same powers and 
privileges in committees as other Members.(16)
---------------------------------------------------------------------------
11. See 1 Hinds' Precedents Sec. Sec. 400, 421, 473.
            A territory or district must be organized by law before the 
        House will admit a representative Delegate (1 Hinds' Precedents 
        Sec. Sec. 405, 407, 411, 412).
12. 1 Stat. 52, Sec. 12.
13. In the early history of Congress, Delegates were allowed to vote on 
        committees to which assigned (1 Hinds' Precedents Sec. 1300). 
        They lost the right in the latter half of the 1800's (1 Hinds' 
        Precedents Sec. 1301) but have regained the right under current 
        House rules. (See Sec. 3.10, infra.)
14. Act of Apr. 12, 1900, 31 Stat. 86, Ch. 191 (Puerto Rico), now 
        codified as 48 USC Sec. 891
15. 2 Cannon's Precedents Sec. Sec. 244-246.
16. Rule XII clause 1, House Rules and Manual Sec. 740 and note 
        thereto, Sec. 741 (1973).
---------------------------------------------------------------------------

    Although the issue has been discussed, Congress has never provided 
for a Delegate or Resident Commissioner to represent his constituency 
in the Senate.(17)
---------------------------------------------------------------------------
17. See 1 Hinds' Precedents Sec. 400. For a recent attempt to provide 
        for nonvoting Delegates in the Senate, see amendment offered to 
        H.R. 8787 (bill to create Delegate positions for Guam and the 
        Virgin Islands) at 118 Cong. Rec. 24, 92d Cong. 2d Sess., Jan. 
        18, 1972.
---------------------------------------------------------------------------

    There is a long list of statutes dating from 1787 providing for 
Delegates to Congress from various regions and 
territories.(18)

[[Page 686]]

The granting to a territory of Delegate representation has up to the 
present preceded the admission of such territory as a state into the 
Union. On the other hand, those properties of the United States which 
have been granted representation by a Resident Commissioner have not 
become states.(19) The question has arisen whether a 
territory or other property is entitled to a Delegate or to a Resident 
Commissioner. It has been stated that an incorporated territory, 
prepared to meet the qualifications for statehood, was entitled to a 
Delegate in Congress, and that unincorporated property,(20) 
not generally contemplated for statehood, would be entitled to a 
Resident Commissioner.(1)
---------------------------------------------------------------------------
18. Delegates have been authorized by the following laws: Act of July 
        13, 1787, 1 Stat. 52 (Northwest terri

[[Page 687]]

        tory); Act of May 26, 1790, 1 Stat. 123, Ch. 14 (territory 
        south of Ohio); Act of Jan. 9, 1808, 2 Stat. 455, Sec. 3 
        (Mississippi territory); Act of Feb. 27, 1809, 2 Stat. 525, Ch. 
        19 (Indiana territory); Act of June 4, 1812, 2 Stat. 745, 
        Sec. 9 (Missouri territory); Act of Mar. 3, 1817, 3 Stat. 363, 
        Ch. 42 (Delegates in all the territories); Act of Mar. 3, 1817, 
        3 Stat. 373, Sec. 4 (Alabama territory); Act of Feb. 16, 1819, 
        3 Stat. 482, Ch. 22 (Michigan territory); Act of Mar. 2, 1819, 
        3 Stat. 495, Sec. 12 (Arkansas territory); Acts of Mar. 30, 
        1822, 3 Stat. 659, Sec. 14, and Mar. 3, 1823, 3 Stat. 754, 
        Sec. 15 (Florida territory); Act of Apr. 20, 1836, 5 Stat. 15, 
        Sec. 14 (Wisconsin territory); Act of June 12, 1838, 5 Stat. 
        240, Sec. 14 (Iowa territory); Act of Aug. 14, 1848, 9 Stat. 
        329, Sec. 16 (Oregon territory); Act of Mar. 3, 1849, 9 Stat. 
        408, Sec. 14 (Minnesota territory); Act of Sept. 9, 1850, 9 
        Stat. 451, Sec. 14 (New Mexico territory); Act of Sept. 9, 
        1850, 9 Stat. 457, Sec. 13 (Utah territory); Act of Mar. 2, 
        1853, 10 Stat. 178, Sec. 14 (Washington territory); Act of May 
        30, 1854, 10 Stat. 282, Sec. 14 and 10 Stat. 289, Sec. 32 
        (Nebraska and Kansas territories); Act of Feb. 28, 1861, 12 
        Stat. 176, Sec. 13 (Colorado territory); Act of Mar. 2, 1861, 
        12 Stat. 214, Sec. 13 (Nevada territory); Act of Mar. 2, 1861, 
        12 Stat. 243, Sec. 13 (Dakota territory); Act of Mar. 3, 1863, 
        12 Stat. 813, Sec. 13 (Idaho territory); Act of May 26, 1864, 
        13 Stat. 91, Sec. 13 (Montana territory); Act of July 25, 1868, 
        15 Stat. 182, Sec. 13 (Wyoming territory); Act of Feb. 21, 
        1871, 16 Stat. 426, Sec. 34 (District of Columbia--repealed in 
        1874); Act of May 2, 1890, 26 Stat. 89, Sec. 16 (Oklahoma 
        territory); Act of Apr. 30, 1900, 31 Stat. 158, Sec. 85 
        (Hawaii); Act of May 7, 1906, 34 Stat. 169-175 (Alaska); Act of 
        Sept. 22, 1970, Pub. L. No. 91-405, 84 Stat. 852 (District of 
        Columbia); Act of Apr. 10, 1972, Pub. L. No. 92-271, 86 Stat. 
        118 (Guam and Virgin Islands).
            Resident Commissioners have been created by the following 
        laws: Act of Apr. 12, 1900, 31 Stat. 86, Ch. 191 (Puerto Rico); 
        Act of Aug. 29, 1916, 39 Stat. 552, Ch. 416 (Philippine 
        Islands).
19. Puerto Rico remains represented by a Resident Commissioner (48 USC 
        Sec. 891). The office of Resident Commissioner from the 
        Philippines was eliminated upon a grant of independence from 
        the United States (see Sec. 3.3, infra).
20. The insular possessions of Puerto Rico, Guam, and the Virgin 
        Islands, have been held to be unincorporated territories (Smith 
        v Government of the Virgin Islands, 375 F2d 714 [3d Cir. 1967]) 
        to which the basic ``fundamental principles'' of the 
        Constitution are applicable. Soto v U.S., 273 F 628 (3d Cir. 
        1921); Government of the Virgin Islands v Rijos, 285 F Supp 126 
        (D. Virgin Islands 1968).
 1. See the remarks of Mr. John C. Spooner (Wisc.), Apr. 2, 1900, 33 
        Cong. Rec. 3632, 56th Cong. 1st Sess., maintaining that Puerto 
        Rico was granted only a Resident Commissioner because of 
        resistance to its becoming a state.
            See also the more recent remarks of John L. McMillan 
        (S.C.), Chairman of the District of Columbia Committee, on Aug. 
        10, 1970, 116 Cong. Rec. 28061, 91st Cong. 2d Sess., objecting 
        to the granting of a Delegate to the District of Columbia on 
        the grounds that the grant was without legal precedent, since: 
        1. Delegates were intended to be interim representatives from 
        territories which were to become states; 2. Representation from 
        lands under the exclusive jurisdiction of the United States and 
        not intended for statehood were granted Resident Commissioners; 
        3. The District is under the sole jurisdiction of the United 
        States, was never intended to be a state, and should have been 
        granted only a Resident Commissioner.
---------------------------------------------------------------------------

    There is no practical distinction between the rights, privileges, 
and entitlements of the Delegate and the Resident 
Commissioner.(2) In 1972, Congress granted to Guam and the 
Virgin Islands, considered unincorporated property of the United 
States,(3) the right to Delegates. Congress provided in the 
91st Congress for a nonvoting Delegate to Congress from the District of 
Columbia,(4) which was characterized not as a territory or 
property belonging to the United States, but as the seat of government. 
The special status of the seat of government is indicated by article I, 
section 8, clause 17, of the Constitution, granting ``exclusive 
legislation'' in the Congress over the seat of government, and by the 
fact that the ratification of the 23d amendment to the Constitution was 
necessary in order to grant representation in the electoral college to 
the District of Columbia.
---------------------------------------------------------------------------
 2. See Rule XII, House Rules and Manual Sec. 740 and note thereto, 
        Sec. 741 (1973).
 3. See Smith v Government of the Virgin Islands, 375 F2d 714 (3d Cir. 
        1967); Government of the Virgin Islands v Rijos, 285 F Supp 126 
        (D. Virgin Islands 1968).
 4. For creation of the D.C. Delegate position, see Sec. 3.1 infra.
---------------------------------------------------------------------------

    Since 1936, several offices of Delegate have been created and some 
eliminated. The Delegates from Alaska and from Hawaii

[[Page 688]]

were both eliminated upon the admission of those territories as states 
into the Union.(5) The office of Resident Commissioner from 
the Philippines was discontinued upon the granting of independence to 
the Philippines by the United States.(6) The most recent 
change in the number of Delegates was occasioned by the adoption of an 
act creating new offices of the Delegate from Guam and the Delegate 
from the Virgin Islands.(7)
---------------------------------------------------------------------------
 5. See Sec. Sec. 3.4, 3.5, infra.
 6. See Sec. 3.3, infra.
 7. See Sec. 3.2, infra.
---------------------------------------------------------------------------

    In early Congresses, there occurred lengthy debate on the 
qualifications, disqualifications, and privileges of the Delegates and 
Resident Commissioners.(8) The principle was established 
that the Delegates and Resident Commissioners should meet the 
qualifications laid down in the Constitution for Members.(9)
---------------------------------------------------------------------------
 8. See 1 Hinds' Precedents Sec. Sec. 400, 421, 423, 469, 470, 473.
            It has been held that the Judiciary has no authority to 
        pass on the qualifications of a territorial Delegate. Sevilla v 
        Elizalde, 112 F2d 29 (D.C. Cir. 1940).
 9. 1 Hinds' Precedents Sec. Sec. 421, 423 (qualifications similar to 
        those of Members, on public policy grounds). Contra, 1 Hinds' 
        Precedents Sec. 473 (Delegate excluded on basis of crime of 
        polygamy, on grounds his office was not a constitutional one, 
        and Congress could provide for qualifications other than those 
        for Members in the Constitution).
            No House precedents appear on the extension to Delegates of 
        the immunities from arrest and from being questioned in another 
        place to Delegates. See, however, Doty v Strong, 1 Pinn. 84 
        (Wise. 1840), where the territorial Supreme Court held the 
        privilege from arrest applicable to Delegates.
            15 Op. Att'y Gen. 281 (1877) declared that a Delegate, like 
        a Member, was affected by the prohibition against holding 
        incompatible offices, but that he could hold such an office 
        until sworn in as a Delegate.
---------------------------------------------------------------------------

    The most recent acts creating offices of Delegates contain within 
their provisions explicit qualifications similar to those 
constitutionally defined for Members.(10)

[[Page 689]]

The Delegate from the District of Columbia is entitled to all the 
privileges granted a Member under article I, section 6, of the 
Constitution.(11) The Delegates from Guam and the Virgin 
Islands are entitled to those privileges and immunities which are 
granted, or may be granted, to the Resident Commissioner from Puerto 
Rico under House rules.(12)
---------------------------------------------------------------------------
10. See 48 USC Sec. 1711 (Guam and Virgin Islands Delegates), requiring 
        age of at least 25 years at election, minimum of seven years' 
        citizenship at election, and inhabitancy in the territory, and 
        prohibiting simultaneous candidacy for another office. Pub. L. 
        No. 91-405, 84 Stat. 852, Sec. 202(b) (District of Columbia 
        Delegate) requires a candidate to be a qualified elector, at 
        least 25 years of age, and at least a three-year resident, and 
        prohibits the holding of another paid public office.
            The qualifications for the Resident Commissioner are United 
        States citizenship, age of at least 25 years, and fluency in 
        the English language 48 USC Sec. 892.
11. Act of Sept. 22, 1970, Pub. L. No. 91-405, 84 Stat. 852, 
        Sec. 202(a).
12. 48 USC Sec. 1715.
---------------------------------------------------------------------------

    In early Congresses, Delegates and Resident Commissioners were 
entitled to vote in the committees to which they were 
assigned.(13) The practice was then discontinued for a 
substantial period of time.(14) In the 92d and 93d 
Congresses, however, Rule XII of the standing rules, relating to 
Delegates and Resident Commissioners,(15) was amended to 
extend to Delegates and Resident Commissioners all the powers in 
committee held by constitutional Members of the House.(16) 
The changes in the rule provided for the Delegates and Resident 
Commissioners to be elected to committees rather than assigned 
(although the D.C. Delegate is permanently assigned to serve on the 
District of Columbia Committee).(17) The current powers of 
Delegates and Resident Commissioners include the right to vote in 
committee and the accrual of committee seniority.(18)
---------------------------------------------------------------------------
13. See 2 Hinds' Precedents Sec. 1301.
14. 2 Hinds' Precedents Sec. 1300; 6 Cannon's Precedents Sec. 243 
        (committee report denying committee vote to Delegate since he 
        held no legislative power).
15. House Rules and Manual Sec. 740 (1973).
16. See Sec. Sec. 3.9, 3.10, infra.
17. See Sec. 3.10, infra.
18. See Sec. 3.11, infra (announcement of majority party policy 
        extending full voting and seniority rights in committee to the 
        Delegates and Resident Commissioner).
---------------------------------------------------------------------------

    On the floor of the House, Delegates and Resident Commissioners may 
debate, make motions, and raise points of order.(19) They 
are entitled to the same salary and some of the allowances of 
Members.(20) They are subject to

[[Page 690]]

the same code of conduct and may be disciplined by the 
House.(1) The rights of Delegates-elect are similar to those 
of Members-elect, and their credentials must be transmitted to the 
House in the same manner. The main distinction at organization is that 
although Delegates and Resident Commissioners must submit credentials 
and must be administered the oath, their names are not included on the 
(Clerk's roll to establish a quorum or to vote for a 
Speaker.(2) A further distinction is that the Resident 
Commissioner is elected for a term of four years by 
statute,(3) as opposed to the constitutional term of two 
years applicable to Members and the statutory term of two years 
applicable to Delegates.(4)
---------------------------------------------------------------------------
19. For the parliamentary rights of the Delegate and Resident 
        Commissioner, see House Rules and Manual Sec. 741 (note to Rule 
        XII) (1973). See also Sec. 3.6 (introducing bills) and Sec. 3.7 
        (objection to consideration of bill), infra.
20. 48 USC Sec. 1715 (Guam and Virgin Islands); Pub. L. No. 91-405, 84 
        Stat. 852, Sec. 204(a) (District of Columbia Delegate); 2 USC 
        Sec. 31 (comprehensive provision for Delegates, Resident 
        Commissioner, Senators, and Representatives).
            See Sec. 4, infra, for the salaries of Members and 
        Delegates, Sec. 6, infra, for travel allowances, and Sec. 8, 
        infra, for personnel, office, and supply allowances.
 1. See Sec. 3.8, infra.
 2. See Ch. 2, supra.
 3. 48 USC Sec. 891.
 4. 48 USC Sec. 1712 (Guam and Virgin Islands); Act of Sept. 22, 1970, 
        Pub. L. No. 91-405, 84 Stat. 852, Sec. 202(a) (D.C. 
        Delegate).                          -------------------
---------------------------------------------------------------------------

Establishment of Office of Delegate

Sec. 3.1 Congress created by law in 1970 the office of Delegate from 
    the District of Columbia to the House of Representatives.

    On Aug. 10, 1970,(5) the House considered a bill 
reported from the Committee on the District of Columbia establishing a 
Study Commission on the District of Columbia Government and providing 
for a nonvoting Delegate from the District to the House of 
Representatives. The section relating to the Delegate reads as follows:
---------------------------------------------------------------------------
 5. 116 Cong. Rec. 28054, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Sec. 202(a) The people of the District of Columbia shall be 
    represented in the House of Representatives by a Delegate, to be 
    known as the ``Delegate to the House of Representatives from the 
    District of Columbia'', who shall be elected by the voters of the 
    District of Columbia in accordance with the District of Columbia 
    Election Act. The Delegate shall have a seat in the House of 
    Representatives, with the right of debate, but not of voting, shall 
    have all the privileges granted a Representative by section 6 of 
    Article I of the Constitution, and shall be subject to the same 
    restrictions and regulations as are imposed by law or rules on 
    Representatives. The Delegate shall be elected to serve during each 
    Congress.
        (b) No individual may hold the office of Delegate to the House 
    of Representatives from the District of Columbia unless on the date 
    of his election--
        (1) he is a qualified elector (as that term is defined in 
    section 2(2) of the District of Columbia Election Act) of the 
    District of Columbia;

[[Page 691]]

        (2) he is at least twenty-five years of age;
        (3) he holds no other paid public office; and
        (4) he has resided in the District of Columbia continuously 
    since the beginning of the three-year period ending on such date. 
    He shall forfeit his office upon failure to maintain the 
    qualifications required by this subsection.

    The House passed the bill on the same day.(6) The Senate 
passed the bill on Sept. 9, 1970.(7)
---------------------------------------------------------------------------
 6. 116 Cong. Rec. 28062, 91st Cong. 2d Sess. See at p. 28061 the 
        remarks on the same day of John L. McMillan (S.C.), Chairman of 
        the Committee on the District of Columbia, maintaining that the 
        District should receive a Resident Commissioner rather than a 
        Delegate.
 7. 116 Cong. Rec. 31040, 91st Cong. 2d Sess.
            The bill became Pub. L. No. 91-405, 84 Stat. 852, when the 
        President approved it on Sept. 22, 1970. See the Presidential 
        message to Congress on Sept. 28, 1970, 116 Cong. Rec. 33865, 
        91st Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 3.2 In 1972 the Congress provided for nonvoting Delegates to the 
    House from the unincorporated territories of Guam and the Virgin 
    Islands.

    On Apr. 10, 1972, there was signed into law a bill granting 
nonvoting Delegate representation in the House from both Guam and the 
Virgin Islands.(8) The bill provided for a term of two years 
for those Delegates, laid down qualifications, and accorded them all 
the privileges that were or might be afforded them under the rules of 
the House.(9)
---------------------------------------------------------------------------
 8. Pub. L. No. 92-271, 86 Stat. 118, codified as 48 USC 
        Sec. Sec. 1711-1715.
            The bill (H.R. 8787) passed the House on Jan. 18, 1972, and 
        was reported from the Committee on Interior and Insular 
        Affairs. 118 Cong. Rec. 12-29, 92d Cong. 2d Sess.
 9. Pub. L. No. 92-271, 86 Stat. 118, Sec. Sec. 2-5.
            A proposal had been made and rejected, for lack of 
        precedent, for Guam and the Virgin Islands to pay the costs of 
        maintaining Delegates in Congress. 118 Cong. Rec. 25-28, 92d 
        Cong. 2d Sess., Jan. 18, 1972.
---------------------------------------------------------------------------

    The Chairman of the committee handling the bill, the Committee on 
Interior and Insular Affairs, Wayne N. Aspinall, of Colorado, indicated 
that there was no legislative intent that the bill be considered as a 
prelude to statehood for either Guam or the Virgin 
Islands.(10)
---------------------------------------------------------------------------
10. 118 Cong. Rec. 13-15, 92d Cong. 2d Sess., Jan. 18, 1972. See also 
        the remarks of Mr. Don H. Clausen (Calif.), id. at p. 21.
---------------------------------------------------------------------------

Elimination of Office of Delegate or Resident Commissioner

Sec. 3.3 The office of Resident Commissioner from the Philippine 
    Islands to the House

[[Page 692]]

    of Representatives was eliminated in 1946 upon the recognition by 
    the United States of the independence of the Philippines.

    Between 1916 and 1946, provision was made for the appointment and 
qualifications of a Resident Commissioner to the House of 
Representatives from the Philippine Islands.(11) However, on 
Mar. 24, 1934, Congress provided by law for the recognition of 
Philippine independence and withdrawal of American 
sovereignty.(12) That law provided for a Presidential 
proclamation to effectuate the surrender of all rights of sovereignty 
of the United States over the Philippines on a date following the 
expiration of a period of 10 years from the date of the inauguration of 
the new government under the Philippine (Constitution provided for in 
the law. The Presidential proclamation declaring Philippine 
independence was signed on July 4, 1946.(13)
---------------------------------------------------------------------------
11. 48 USC Sec. 1091, Aug. 29, 1916, Ch. 416, Sec. 20, 39 Stat. 552; 
        June 5, 1934, Ch. 390, Sec. 4, 48 Stat. 879.
12. 22 USC Sec. 1394, 48 Stat. 463, Ch. 84, Sec. 10.
13. Proclamation No. 2695, set out as notes following 22 USCA 
        Sec. 1394.
---------------------------------------------------------------------------

    On July 2, 1946,(14) the House granted unanimous consent 
that Speaker Sam Rayburn, of Texas, send an appropriate message to the 
President and the people of the Republic of the Philippines extending 
the congratulations of the House of Representatives on their 
independence.
---------------------------------------------------------------------------
14. 92 Cong. Rec. 8167, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 3.4 The office of Delegate from Alaska to the House of 
    Representatives was eliminated in 1959 when Alaska was admitted to 
    statehood.

    From 1906 to 1959, the United States Code provided for a Delegate 
from the Territory of Alaska to represent that territory in the House 
of Representatives.(15) On July 7, 1958, Alaska was declared 
by law to be a State of the United States of America. The law provided 
for the President to issue a proclamation to effectuate the admission 
of Alaska into the Union.(16) His proclamation was issued on 
Jan. 3, 1959,(17) and the names of Members-elect from the

[[Page 693]]

State of Alaska were called for the first time on the Clerk's roll at 
the convening of the 86th Congress on Jan. 7, 1959.(18)
---------------------------------------------------------------------------
15. 48 USC Sec. 131 (May 7, 1906, Ch. 2083, Sec. 1, 34 Stat. 169). The 
        Delegate's term of office was provided for in 48 USC Sec. 132 
        and his salary and allowances provided for in 48 USC Sec. 134.
16. Pub. L. No. 85-508, July 7, 1958, 72 Stat. 339, Sec. 8(c).
17. For the text of Pub. L. No. 85-508 and of the President's 
        Proclamation No. 3269 and other materials relating to Alaska 
        statehood, see the notes preceding 48 USCA Sec. 21.
18. 105 Cong. Rec. 11, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 3.5 The office of Delegate from the Territory of Hawaii to the 
    House of Representatives was eliminated in 1959 when Hawaii was 
    admitted as a State.

    From 1900 until 1959, the law provided for a Delegate to the House 
of Representatives from the Territory of Hawaii.(19) On Mar. 
18, 1959, a law was enacted granting statehood to Hawaii and providing 
for the issuance of a Presidential proclamation to effectuate the 
admission of Hawaii into the Union.(20) On Aug. 21, 1959, 
Hawaii was officially admitted into the Union pursuant to the issuance 
of a Presidential proclamation.(1)
---------------------------------------------------------------------------
19. 48 USC Sec. 651, Apr. 30, 1900, 31 Stat. 158, Ch. 339, 85.
20. Pub. L. No. 86-3, 73 Stat. 4, Sec. 7(c).
 1. Proclamation No. 3309. The proclamation, Pub. L. No. 86-3, and 
        other materials relating to Hawaii's statehood are set out as 
        notes preceding 48 USCA Sec. 491.
---------------------------------------------------------------------------

    The first Representative from the State of Hawaii appeared to take 
the oath of office in the 86th Congress on Aug. 24, 1959.(2)
---------------------------------------------------------------------------
 2. 105 Cong. Rec. 16799, 86th Cong. 1st Sess. A scroll praising former 
        Delegate John A. Byrns (Hawaii) for his role in achieving 
        Hawaii statehood was placed in the Speaker's lobby for the 
        signature of Members. 105 Cong. Rec. 11588, 86th Cong. 1st 
        Sess., June 23, 1959. A private bill introduced by Delegate 
        Byrns before the admission of Hawaii as a state was considered 
        and passed by the House after the admission of Hawaii on May 3, 
        1960. 106 Cong. Rec. 9246, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

Floor Privileges; Introducing or Objecting to Bills

Sec. 3.6 The House granted unanimous consent that a Delegate be 
    permitted to introduce bills notwithstanding his absence from the 
    House.

    On Jan. 3, 1953,(3) the House granted unanimous consent 
to a request that the Delegate from Hawaii, Joseph R. Farrington, 
unavoidably absent due to a family death, be permitted to introduce 
bills despite his absence.
---------------------------------------------------------------------------
 3. 99 Cong. Rec. 29, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 3.7 The Resident Commissioner objected to the consideration of a 
    private bill, thereby causing its recommittal.

    On Oct. 7, 1969,(4) Speaker John W. McCormack, of 
Massachusetts, ordered a private bill recommitted

[[Page 694]]

to the Committee on the Judiciary after recognizing Mr. Harold R. 
Gross, of Iowa, and Jorge L. Cordova, Resident Commissioner, Puerto 
Rico, for objections to the bill's consideration.
---------------------------------------------------------------------------
 4. 115 Cong. Rec. 28801, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 3.8 In the 92d Congress, all Delegates were admitted to the floor, 
    extended the services of the Clerk and Sergeant at Arms, and 
    brought under the Code of Conduct by amendments to the House rules.

    On Jan. 21, 1971, the opening day of the 92d 
Congress,(5) there was offered by William M. Colmer, of 
Mississippi, Chairman of the Committee on Rules, House Resolution 5, to 
amend the House rules to reflect the creation of the office of Delegate 
from the District of Columbia. One amendment extended the privileges of 
the House floor to the Delegate under Rule XXXII.(6) Other 
amendments included the Delegate within the class of persons entitled 
to the services of the Clerk under Rule III clause 3,(7) and 
to the services of the Sergeant at Arms under Rule IV clause 
1.(8) The last amendment brought the Delegate within the 
definition of ``Members'' affected by the Code of Conduct of Rule 
XLIII.(9)
---------------------------------------------------------------------------
 5. 117 Cong. Rec. 15, 92d Cong. 1st Sess.
 6. House Rules and Manual Sec. 919 (1973).
 7. House Rules and Manual Sec. 641-646 (1973).
 8. House Rules and Manual Sec. 648 (1973).
 9. House Rules and Manual Sec. 939 (1973).
---------------------------------------------------------------------------

    The House adopted House Resolution 5 on Jan. 22, 
1971.(10)
---------------------------------------------------------------------------
10. 117 Cong. Rec. 144, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    Later in the 92d Congress, on Oct. 13, 1972,(11) the 
House amended the House rules to reflect the grant to Guam and the 
Virgin Islands of Delegate positions by the passage of House Resolution 
1153. The resolution extended to all Delegates the right of admission 
to the floor, the services of the Clerk and Sergeant at Arms, and 
brought them within the scope of the Code of Conduct.
---------------------------------------------------------------------------
11. 118 Cong. Rec. 36013-23, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

Committee Membership

Sec. 3.9 In the 92d and 93d Congresses, the House amended its rules to 
    provide for the election, rather than the assignment, of the 
    Resident Commissioner and Delegates to standing committees.

    On Jan. 21, 1971, the opening day of the 92d 
Congress,(12) Wil

[[Page 695]]

liam M. Colmer, of Mississippi, Chairman of the Committee on Rules, 
offered House Resolution 5, amending the standing rules of the House. 
Among the proposed changes was a complete revision of Rule XII, which 
had formerly provided for the Resident Commissioner from Puerto Rico to 
be assigned to the standing Committees on Agriculture, Armed Services, 
and Interior and Insular Affairs, and for the Delegates from Alaska and 
Hawaii to be similarly assigned to certain standing 
committees.(13) The new Rule XII proposed by House 
Resolution 5 provided:
---------------------------------------------------------------------------
12. 117 Cong. Rec. 144, 92d Cong. 1st Sess.
13. House Rules and Manual Sec. 740 (1969). The references to the 
        Hawaiian and Alaskan Delegates were obsolete, as those 
        territories had become states (see Sec. Sec. 3.4, 3.5, supra). 
        For an amendment to the House rules in 1949 permitting the 
        Alaskan Delegate to serve on an additional committee, see 95 
        Cong. Rec. 10618, 81st Cong. 1st Sess., Aug. 2, 1949.
---------------------------------------------------------------------------

        Strike out Rule XII, and insert in lieu thereof the following:

                                    Rule XII

        resident commissioner from puerto rico and delegate from the 
            district of columbia

            1. The Resident Comrmissioner to the United States from 
        Puerto Rico shall be elected to serve on standing committees in 
        the same manner as Members of the House and shall possess in 
        such committees the same powers and privileges as the other 
        Members.
            2. The Delegate from the District of Columbia shall be 
        elected to serve as a member of the Committee on the District 
        of Columbia and shall be elected to serve on other standing 
        committees of the House in the same manner as Members of the 
        House and shall possess in all committees on which he ser.ves 
        the same powers and privileges as the other Members.

    The House adopted House Resolution 5 on Jan. 22, 
1971.(14) At the opening of the 93d Congress, the House 
further amended Rule XII to provide for all Delegates to be elected to 
conmittees: (15)
---------------------------------------------------------------------------
14. 117 Cong. Rec. 144, 92d Cong. 1st Sess.
15. H. Res. 6, 119 Cong. Rec. 26, 27, 93d Cong. 1st Sess., Jan. 3, 
        1973.
---------------------------------------------------------------------------

        In Rule XII, clause 2 is amended to read as follows:

            The Delegate from the District of Columbia shall be elected 
        to serve as a member of the Committee on the District of 
        Columbia and each Delegate to the House shall be elected to 
        serve on standing committees of the House in the same manner as 
        Members of the House and shall possess in all committees on 
        which he serves the same powers and privileges as the other 
        Members.

Committee Powers and Privileges

Sec. 3.10 In the 92d and 93d Congresses, Delegates and the Resident 
    Commissioner were extended all the powers and privileges of Members 
    in

[[Page 696]]

    committees, including the right in committee to vote and to obtain 
    seniority.

    On Jan. 21, 1971, the opening day of the 92d 
Congress,(16) William M. Colmer, of Mississippi, Chairman of 
the Committee on Rules, offered House Resolution 5, amending the 
standing rules of the House. One portion of the resolution completely 
revised Rule XII, relating to committee service by the Resident 
Commissioner and Delegates.(17)
---------------------------------------------------------------------------
16. 117 Cong. Rec. 14, 92d Cong. 1st Sess.
17. See Sec. 3.9, supra, for the text of the amendment.
---------------------------------------------------------------------------

    The proposed amendment not only provided for the Resident 
Commissioner from Puerto Rico and the Delegate from the District of 
Columbia to be elected to committees, but also extended to them all the 
powers and privileges in committee as those possessed by Members of the 
House (including the right to vote and to obtain seniority 
rights).(18)
---------------------------------------------------------------------------
18. Rule XII clauses 1 and 2, House Rules and Manual Sec. 740 (1973).
---------------------------------------------------------------------------

    The House adopted House Resolution 5 on Jan. 22, 
1971.(19)
---------------------------------------------------------------------------
19. 117 Cong. Rec. 144, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    At the opening of the 93d Congress, the House further amended Rule 
XII to provide for all Delegates, including those from Guam and the 
Virgin Islands, to possess all the powers and privileges of Members in 
committees to which elected.(20)
---------------------------------------------------------------------------
20. H. Res. 6, 119 Cong. Rec. 26, 27, 93d Cong. 1st Sess., Jan. 3, 1973 
        (see Sec. 3.9, supra, for the text of the amendment).
---------------------------------------------------------------------------

Sec. 3.11 In the 93d Congress, the majority party caucus announced a 
    policy extending full committee voting and seniority rights to the 
    Delegates and the Resident Commissioner

    On Mar. 15, 1973,(1) Philip Burton, of California, 
Chairman of the Democratic Study Group, announced the policy changes 
adopted by the Democratic Caucus at the beginning of the 93d Congress.
---------------------------------------------------------------------------
 1. 119 Cong. Rec. 8018, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    Among them was a policy providing that the Delegates from the 
District of Columbia, Guam, and the Virgin Islands, and the Resident 
Commissioner of Puerto Rico have full voting rights and seniority in 
committee.

[[Page 697]]



 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 4. Salary; Benefits and Deductions


    The Constitution directs in article I, section 6, clause 1, that 
Senators and Representatives shall receive compensation for their 
services,(2) to be paid out of the Treasury of the United 
States.(3) Pursuant to that clause, the rate of compensation 
is fixed by statute and is periodically reviewed.(4) In the 
90th Congress, there was established the Commission on Executive, 
Legislative, and Judicial Salaries, which commission reviews salaries 
periodically and submits a report to the President who then makes 
recommendations in his budget message.(5)
---------------------------------------------------------------------------
 2. Compensation is pay for official services and does not include 
        allowances, which are reimbursement for actual or presumed 
        expenses and which are additional and separable from the legal 
        rate of compensation. Smith v U.S., 158 U.S. 346 (1895). 
        Therefore, where there has been no appropriation for an 
        allowance, a Congressman cannot claim a constructive allowance 
        as part of his compensation. Wilson v U.S., 44 Ct. Cl. 428 
        (1909).
            For discussion of allowances, see Sec. 6, infra (travel), 
        and Sec. 8, infra (office, personnel, and supply allowances).
 3. See also 2 USC Sec. 47 (congressional compensation as ``public 
        accounts'').
            In the drafting and ratification of the Constitution, there 
        was debate on whether any compensation should be allowed, or 
        whether it should be allowed for only the House and not for the 
        Senate. Story, Commentaries on the Constitution of the United 
        States, Sec. Sec. 851-52, Da Capo Press (N.Y., Repub. 1970).
            It was specifically provided that the compensation be paid 
        out of the U.S. Treasury, rather than the individual state 
        treasuries, in order to insure the independence of the national 
        legislature and the equality of compensation. Id. at Sec. 854.
 4. The constitutional authority for payment of congressional salaries 
        does not stem from the general taxing and spending power of 
        Congress but from the specific clause providing for a 
        congressional salary to be paid. Richardson v Kennedy, 313 F 
        Supp 1282 (W.D. Pa. 1970), aff'd mem. 401 U.S. 901 (1971) 
        (taxpayer lacked standing to challenge congressional pay raise 
        effected by the Commission on Executive Legislative, and 
        Judicial Salaries).
            As to the fixing of the congressional salary, early 
        objections were voiced on the failure of the Constitution to 
        provide a procedure for fixing and changing the salary. Story, 
        Commentaries on the Constitution of the United States, 
        Sec. 855, Da Capo Press (N.Y., Repub. 1970).
 5. For the establishment of the commission and for the 1969 
        congressional pay raise effected by the commission, see 
        Sec. 4.1, infra.
---------------------------------------------------------------------------

    The salary of Members progressed from $6 per diem in the

[[Page 698]]

First Congress to a fixed amount of $42,500 per year in the 90th 
Congress.(6) The statutes also fix separate rates of salary 
for the Speaker and Majority and Minority Leaders of the 
House.(7)
---------------------------------------------------------------------------
 6. Salaries, 1795 to 1906: $6 per diem before Mar. 4, 1795, $7 per 
        diem after Mar. 4, Act of Sept. 22, 1789, 1 Stat. 70-71; 
        reduced to $6 per diem, Act of Mar. 10, 1796, 1 Stat. 448; 
        $1,500 annually, Act of Mar. 19, 1816, repealed by Act of Feb. 
        6, 1817, 3 Stat. 257; $8 per diem, Act of Jan. 22, 1818, 3 
        Stat. 404; $3,000 annually, Act of Aug. 16, 1856, 11 Stat. 48; 
        $250 per month, Act of Dec. 23, 1857, 11 Stat. 367; $5,000 
        annually, Act of July 28, 1866, 14 Stat. 323; $7,500 annually, 
        Act of Mar. 3, 1873, 17 Stat. 486; $5,000 annually, Act of Jan. 
        20, 1874, 18 Stat. 4.
            1907 to 1936: $7,500 annually, Act of Feb. 26, 1907, 34 
        Stat. 993; $10,000 annually, Act of Mar. 4, 1925, 43 Stat. 
        1301; $9,000 annually, Act of June 30, 1932, 47 Stat. 401 
        (Economy Act of 1932); $8,500 annually, Act of Mar. 20, 1933, 
        48 Stat. 14 (Economy Act of 1933); $9,000 annually, Act of Mar. 
        28, 1934, 48 Stat. 521; $9,500 annually, Act of May 30, 1934, 
        48 Stat. 821; $10,000 annually, Act of Feb. 13, 1935, 49 Stat. 
        24.
            Since 1936: $12,500 annually, effective Jan. 3, 1947, Act 
        of Aug. 2, 1946, 60 Stat. 850; $22,500 annually, Act of Mar. 2, 
        1955, 69 Stat. 11; $30,000 annually, effective Jan. 3, 1965, 
        Act of Aug. 14, 1964, 78 Stat. 415; $42,500 annually, effective 
        Mar. 1, 1969, Act of Dec. 16, 1967, Pub. L. No. 90-206, 81 
        Stat. 613 (codified as 2 USC Sec. 31); $57,500 annually, 
        effective Mar. 1, 1977 (recommendations of President submitted 
        Jan. 17, 1977, pursuant to Pub. L. No. 90-206).
 7. Under 2 USC Sec. 31, as amended by the Act of Sept. 15, 1969, Pub. 
        L. No. 91-67, 83 Stat. 107, the Speaker receives $62,500 
        annually, and the Majority and Minority Leader receive $49,500 
        annually.
            Prior to the passage of Pub. L. No. 91-67, the Majority and 
        Minority Leaders received the same salary as the other Members. 
        Their pay raise was effected by the recommendations of the 
        Commission on Executive, Legislative, and Judicial Salaries, as 
        transmitted to Congress in the Presidential Budget Message for 
        1970. H. Doc. No. 91-51, 91st Cong. 1st Sess., Jan. 17, 1969.
---------------------------------------------------------------------------

    Salary begins for Members-elect at the beginning of their term, 
even if Congress meets after the constitutional day of Jan. 
3.(8) The actual entitlement to salary before Congress 
meets, depends, however, on the filing of duly-certified 
credentials.(9) Once Congress con

[[Page 699]]

venes, salaries are regularly paid only to those Members who have taken 
the oath and who have duly qualified for seats in the 
House.(10) If a Member-elect does not have credentials on 
file, or if his right to a seat is challenged, he is paid retroactively 
to the beginning of the term once his right to a seat is 
determined.(11)
---------------------------------------------------------------------------
 8. 2 USC 34.
 9. Members-elect receive compensation monthly between the beginning of 
        the term and the convening of Congress under 2 USC Sec. 34, but 
        only if the Clerk has received a certificate showing regular 
        election under 2 USC Sec. 26. A person who presents regular 
        credentials must be placed on the Clerk's roll and must receive 
        salary from the beginning of his term. Page v U.S., 127 U.S. 67 
        (1888).
            If a territory elected a ``representative'' before 
        admission into the Union, the person elected was entitled to 
        congressional salary only from the time of the admission of the 
        territory as a state into the Union. Conway v U.S., 1 Ct. Cl. 
        69 (1863).
10. 2 USC Sec. 35. The House may, however, authorize a Member-elect 
        whose right to a seat is being investigated to receive salary 
        and allowances pending the result of the investigation (see 
        Sec. 4.3, infra)
11. See Sec. 4.5, infra.
---------------------------------------------------------------------------

    As for the salary of Members elected to fill unexpired terms, the 
statutes formerly provided that such a Member would receive salary from 
the time that the compensation of his ``predecessor'' 
ceased.(12) The code now provides that where a person is 
elected to fill an unexpired term, his salary commences on the date of 
his election and not before.(13)
---------------------------------------------------------------------------
12. Resolution of July 12, 1862, No. 54, 12 Stat. 624.
13. 2 USC Sec. 37. For the Speaker's analysis of the change in the 
        provision, see 6 Cannon's Precedents Sec. 203.
---------------------------------------------------------------------------

    The Sergeant at Arms is the accounting and disbursing officer for 
the salaries of Members.(14) Before the salaries are paid 
out of United States Treasury, however, salary accounts are certified 
by the Speaker if the House is in session (15) or by the 
Clerk if the

[[Page 700]]

House is not in session.(16) Congressional salaries are paid 
out monthly, by statutory mandate, both before and after Congress 
convenes.(17)
---------------------------------------------------------------------------
14. 2 USC Sec. 78. The function of the Sergeant at Arms in disbursing 
        salary is also dictated by Rule IV clause 1, House Rules and 
        Manual Sec. 649 (1973), which was amended by H. Res. 5, 92d 
        Cong. 1st Sess., Jan. 22, 1971, and H. Res. 1153, 92d Cong. 2d 
        Sess., Oct. 13, 1972, to extend his services to all Delegates 
        and the Resident Commissioner.
            See also 31 USC Sec. 148, which authorizes the Treasurer of 
        the United States to disburse the Members' salaries in the case 
        of the Sergeant at Arms' disability.
            2 USC Sec. 80 clarifies the Sergeant at Arms' duties in 
        relation to the compensation of Members. When he presents the 
        necessary certificates to the Treasurer of the U.S. for 
        Members' salary, he is acting as a public agent. Where, 
        however, he draws the salary for Members before it is properly 
        due, the transfer of the money to him is not a payment to 
        Members. Crain v U.S., 25 Ct. Cl. 206 (1890).
15. 2 USC Sec. 48. The Court of Claims has stated that the salary of 
        Members is not dependent upon the Speaker's certificate. Wilson 
        v U.S., 44 Ct. Cl. 428 (1909) (dicta). However, the Speaker's 
        certificate, even if in the form of a personal letter, is 
        conclusive upon the accounting officers of the Treasury. 6 
        Cannon's Precedents Sec. 201.
            The Speaker may designate a substitute to sign the 
        certificates in his name. 2 USC Sec. 50.
16. 2 USC Sec. 49.
17. 2 USC Sec. 34 (before convening) and 2 USC Sec. 35 (after oath-
        taking).
---------------------------------------------------------------------------

    The salaries of Members are subject to deductions for federal 
income tax, and may be made subject, at the election of the individual 
Member, for deductions for retirement, health, and insurance 
benefits.(18) Authorized by statute are deductions for 
unauthorized leaves of absence,(19) for withdrawal from the 
congressional seat,(20) and for delinquency 
indebtedness.(1)
---------------------------------------------------------------------------
18. See Sec. 4.10, infra.
19. 2 USC Sec. 39.
            Deductions from a Member's salary for unauthorized leaves 
        may only be taken after he has been sworn in. 2 Hinds' 
        Precedents Sec. 1154. For information on leaves of absence, see 
        Sec. 5, infra. On one occasion, a Member requesting a leave of 
        absence not for official business requested a leave of absence 
        without pay (Sec. 5.10, infra).
20. 2 USC Sec. 40.
 1. 2 USC Sec. 40a.
---------------------------------------------------------------------------

    On one occasion, the House directed that a monthly deduction be 
levied from a challenged Member's-elect salary as punishment for 
improper conduct in past Congresses.(2)
---------------------------------------------------------------------------
 2. See Sec. 4.4, infra.
---------------------------------------------------------------------------

    In the event that a Member dies during his term of office, and was 
due unpaid salary, such salary goes to his designated beneficiary by 
statute, or to his widow or widower, or children, or parents, or to the 
person so entitled under state domiciliary law.(3) 
Customarily, the House appropriates an amount equal to one year's 
congressional salary to the widow of a deceased Member.(4) 
Any such death gratuity payment must be construed as a gift to the 
specified donee.(5)
---------------------------------------------------------------------------
 3. 2 USC Sec. 38a. The claim of the estate of a deceased Member is 
        handled by the Committee on the Judiciary (see Sec. 4.12, 
        infra).
            Where a Member took  leave of absence for military service, 
        and after the Sergeant at Arms had ceased paying Members absent 
        for that purpose, the House paid the deceased's widow the 
        difference between his unpaid House salary and the military 
        salary he had received (see Sec. 4.13, infra).
 4. 6 Cannon's Precedents Sec. 204.
 5. 2 USC Sec. 38b.
---------------------------------------------------------------------------

    The question arises as to whether a Member-elect of Congress may 
receive dual compensation both for (1) his congressional seat and (2) 
an incompatible office held

[[Page 701]]

up to the time he takes the oath.(6) When that problem 
recently arose for a Senator-elect, he waived his congressional salary 
up to the time he took the oath and resigned from his 
office.(7) The House has not expressly ruled on the question 
whether a Representative would be required to do the 
same.(8)
---------------------------------------------------------------------------
 6. 14 Op. Att'y Gen. 406 (1874) proposed that since a Member-elect 
        could lawfully hold an office under the United States until 
        appearing to be sworn (see Sec. 13, infra), he was entitled to 
        receive pay for both positions before becoming a Member 
        (assuming Congress met after the beginning of the term). That 
        conclusion was based in part on the decision in Converse v 
        U.S., 62 U.S. (21 How.) 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) and 12 Op. Att'y Gen. 459 (1868).
 7. See Sec. 4.9, infra.
 8. See the determination of the House, cited 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, however, the status of that 
        Member-elect, who resigned before taking the oath, but the 
        entitlement to salary of his successor).
            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 of 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 question was left open in the report.
---------------------------------------------------------------------------

    During World War I Members who served in the military forces during 
their congressional terms received compensation for both 
positions.(9) During World War II, however, the Sergeant at 
Arms did not pay those Members absent for military training or service 
during their terms, pursuant to an opinion of the Comptroller 
General.(10) When drafting a bill providing for United 
States representation in the United Nations, Congress specifically 
provided that any Congressman appointed to the position not receive 
salary for that position, in order to avoid the prohibition against 
holding incompatible offices.(11)
---------------------------------------------------------------------------
 9. See 6 Cannon's Precedents Sec. 61.
10. See Sec. 4.6, infra. See also Sec. 4.13, infra (effect of military 
        absence on payment of congressional salary to widow of deceased 
        ex-Member).
11. See Sec. 4.7, infra. See U.S. v Hartwell, 73 U.S. 385, 393 (1868), 
        implying that another governmental office without compensation 
        would not be incompatible.

---------------------------------------------------------------------------

[[Page 702]]

    Congressional salary may be waived by a Member, in which case the 
sum is remitted to the Treasury of the United States.(12) 
For example, a Member who was to be imprisoned for a period of four 
months for a criminal conviction instructed the Sergeant at Arms to 
return his salary to the Treasury for that period.(13)
---------------------------------------------------------------------------
12. 6 Cannon's Precedents Sec. 203.
13. See Sec. 4.8, infra.
---------------------------------------------------------------------------

    What has been said above is applicable to Delegates and the 
Resident Commissioner; contrary to prior practice,(14) they 
now receive the same salary as Members.(15) Rule IV clause 
1, detailing the functions of the Sergeant at Arms in keeping accounts 
and disbursing pay to Members, was amended in the 92d Congress to 
explicitly entitle Delegates and the Resident Commissioner to the 
financial services of that officer.(16)
---------------------------------------------------------------------------
14. 6 Cannon's Precedents Sec. 201 (differentiation in salary between 
        Members and Delegates and Resident Commissioners).
15. 2 USC Sec. 31.
16. House Rules and Manual Sec. 649 (1973). The amendments were 
        accomplished by H. Res. 5, 92d Cong. 1st Sess., Jan. 22, 1971, 
        and H. Res. 1153, 92d Cong. 2d Sess., Oct. 13, 1972.
---------------------------------------------------------------------------

                            Cross References
Monetary allowances, see Sec. 6, infra (travel allowance) and Sec. 8, 
    infra (office and personnel allowances; supplies).
Compensation and incompatible offices, see Sec. 13, infra.
Compensation for military service, see Sec. 14, infra.
Deductions from compensation for absence, see Sec. 5, infra.
Compensation of officers, officials and employees, see Ch. 6, 
    supra.                          -------------------

Fixing Congressional Salary

Sec. 4.1 The Commission on Executive, Legislative, and Judicial 
    Salaries, established in the 90th Congress, reviews congressional 
    salaries and submits budget recommendations periodically.

    There was established in the 90th Congress a Commission on 
Executive, Legislative, and Judicial Salaries.(17) The 
commission's functions are to review once every fourth year the 
salaries of identified federal officials, including

[[Page 703]]

Congressmen, and to submit a report to the President embodying suitable 
budget recommendations.(18)
---------------------------------------------------------------------------
17. Postal Revenue and Federal Salary Act of 1967, Pub. L. No. 90-206, 
        61 Stat. 642, Sec. 225 (2 USC Sec. Sec. 351-361).
            In Richardson v Kennedy, 313 F Supp 1282 (W.D. Pa.), aff'd 
        mem., 401 U.S. 901 (1971), the Supreme Court affirmed a lower 
        court decision that a taxpayer lacked standing to attack a 
        congressional pay raise effected by the commission.
18. 2 USC Sec. 356. For the membership of the commission, appointed by 
        the President, the Speaker, the President of the Senate, and 
        the Chief Justice, see 2 USC Sec. 352.
---------------------------------------------------------------------------

    Pursuant to the report of the commission in 1969, and to the 
President's budget proposals incorporating its recommendations, the 
congressional salary was increased to $42,500 per annum in 
1969.(19)
---------------------------------------------------------------------------
19. Act of Sept. 15, 1969, Pub. L. No. 91-67, Sec. 2, 83 Stat. 107.
            For the President's 1969 salary recommendations, see 34 
        Fed. Reg. 2241 (1969), reprinted at 2 USCA Sec. 358. For the 
        President's message to Congress transmitting his recom 
        mendations and analyzing the commission, see Message from the 
        President, H. Doc. No. 91-51, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Funds for Salary

Sec. 4.2 The House authorized the Clerk by resolution to transfer 
    unexpended funds to the Sergeant at Arms in order to pay the 
    salaries of Members, where the supplemental appropriation bill was 
    pending before the Senate.

    On May 28, 1969, a resolution was called up authorizing the 
transfer of funds left over from 1968 House appropriations and of funds 
for 1969 House appropriations, in order to meet the payroll of the 
House: (20)
---------------------------------------------------------------------------
20. 115 Cong. Rec. 14165, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Samuel N.] Friedel [of Maryland]: Mr. Speaker, by 
    direction of the Committee on House Administration, I call up the 
    resolution (H. Res. 425) and ask unanimous consent for its 
    immediate consideration.
        The Speaker: (1) Is there objection to the request 
    of the gentleman from Maryland?
---------------------------------------------------------------------------
 1. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        There was no objection.
        The Clerk read the resolution, as follows:

                                  H. Res. 425

            Resolved, That the Clerk of the House and Sergeant at Arms 
        be and is hereby directed to pay such sum as may be necessary, 
        from the balance available of the 1968 appropriation and the 
        various funds of the 1969 appropriation, where balances may be 
        available, for the House of Representatives to meet the May and 
        June payroll of Members, officers of the House, and employees 
        of the House. Moneys expended from these funds and/or 
        appropriations by the Sergeant at Arms and the Clerk will be 
        repaid to the funds and/or appropriations from the Sergeant at 
        Arms and Clerk's supplemental appropriation upon its approval.

    The House adopted the resolution, after Mr. Friedel explained that 
the purpose of the resolution was to enable meeting the payroll

[[Page 704]]

of the House for the next month, pending enactment of a supplemental 
appropriation bill containing funds for such payroll.
    Parliamentarian's Note: The resolution was not in fact privileged 
for consideration under Rule XI clause 22, since it did not involve 
payment from the contingent fund of the House.

Salary of Challenged Member-elect

Sec. 4.3 Where a Member-elect was excluded from the House pending an 
    investigation of his right to be sworn, the House by resolution 
    authorized salary and allowances for such Member pending a final 
    determination of his right to the seat.

    On Jan. 10, 1967,(2) the House agreed to House 
Resolution 1, as amended, excluding Member-elect Adam C. Powell, of New 
York, from the House pending an investigation of his right to be sworn. 
The resolution, referring to a select committee the question of his 
right to his seat, permitted Mr. Powell to draw all the pay, 
allowances, and emoluments authorized for Members of the House:
---------------------------------------------------------------------------
 2. 113 Cong. Rec. 24, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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. . . .
        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.

Sec. 4.4 When affirming the right of a Member-elect to his seat, 
    challenged for improper conduct in past Congresses, the House may 
    provide for punishment by levying deductions from his congressional 
    salary.

    On Jan. 3, 1969, the House authorized by resolution (H. Res. 2) 
challenged Member-elect Adam C). Powell, of New York, to take his 
seat.(3) Clause 2 of House Resolution 2 read as follows:
---------------------------------------------------------------------------
 3. 115 Cong. Rec. 34, 91st Cong. 1st Sess.
            For a summary of Mr. Powell's alleged improper conduct in 
        past Congresses, see the remarks of Mr. Gillespie V. Montgomery 
        (Miss.), id. at p. 21.

---------------------------------------------------------------------------

[[Page 705]]

        That as punishment Adam Clayton Powell be and he hereby is 
    fined the sum of $25,000, said sum to be paid to the Clerk to be 
    disposed of by him according to law. The Sergeant at Arms of the 
    House is directed to deduct $1,150 per month from the salary 
    otherwise due the said Adam Clayton Powell, and pay the same to 
    said Clerk until said $25,000 fine is fully paid.(4)
---------------------------------------------------------------------------
 4. For legal basis for the salary deductions, as based on the 
        constitutional power of the House to punish Members, see the 
        remarks of Mr. Frederick Schwengel (Iowa), id. at pp. 32, 33. 
        Mr. Schwengel also stated that the resolution would not bar 
        civil litigation to recover any moneys found to be due Congress 
        from Mr. Powell. Id. at p. 33.
---------------------------------------------------------------------------

Sec. 4.5 Where a challenged Member-elect was declared entitled to a 
    seat following a recount of the votes cast in the election, the 
    House adopted a resolution entitling him to congressional salary 
    from the beginning of the term to which elected.

    On June 14, 1961,(5) the House adopted House Resolution 
339, reported as privileged from the Committee on House Administration, 
declaring that J. Edward Roush, of Indiana, was entitled to a seat in 
the House from the Fifth Congressional District of Indiana. The 
committee had conducted a recount of the votes cast in the election, 
pursuant to House Resolution 1 of the 87th Congress.
---------------------------------------------------------------------------
 5. 107 Cong. Rec. 10391, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

    The House then adopted House Resolution 340, also reported as 
privileged from the Committee on House Administration, providing that 
Mr. Roush be entitled to compensation, mileage, allowances, and other 
emoluments from the commencement of the term of the 87th Congress (and 
providing suitable compensation for the other contestant for the seat):

        Resolved, That the House of Representatives having considered 
    the question of the right of J. Edward Roush or George O. Chambers, 
    from the Fifth Congressional District of Indiana, to a seat in the 
    House in the Eighty-seventh Congress, pursuant to H. Res. 1, 
    Eighty-seventh Congress, and having decided that the said J. Edward 
    Roush is entitled to a seat in the House in such Congress with the 
    result that the said J. Edward Roush is entitled to receive and 
    will be paid the compensation, mileage, allowances, and other 
    emoluments of a Member of the House from and after January 3, 1961, 
    there shall be paid out of the contingent fund of the House such 
    amounts as are necessary to carry out the provisions of this 
    resolution in connection with such decision of the House, as 
    follows:
        (1) The said George O. Chambers shall be paid an amount equal 
    to compensation at the rate provided by law for Members of the 
    House for the period beginning January 3, 1961, and ending on the 
    date of such decision of the House.

[[Page 706]]

        (2) The said J. Edward Roush and the said George O. Chambers 
    each shall be paid an amount equal to the mileage at the rate of 10 
    cents per mile, on the same basis as now provided by law for 
    Members of the House, for each round trip between his home in the 
    Fifth Congressional District of Indiana and Washington, District of 
    Columbia, in response to the request of the Committee on House 
    Administration for his appearance before the committee in 
    connection with the investigation authorized by H. Res. 1, Eighty-
    seventh Congress.
        (3) The said J. Edward Roush and the said George O. Chambers 
    each shall be reimbursed for those expenses actually incurred by 
    him in connection with the investigation by the Committee on House 
    Administration authorized by H. Res. 1, Eighty-seventh Congress, in 
    accordance with that part of the first section of the Act of March 
    3, 1879 (20 Stat. 400; 2 U.S.C. 226), which provides for payment of 
    expenses in election contests.

Dual Compensation

Sec. 4.6 During World War II, the Sergeant at Arms of the House did not 
    disburse congressional salary to those Members who were presently 
    on leaves of absence and serving in the military.

    In accordance with an opinion given him by the Comptroller General, 
Sergeant at Arms of the House Kenneth Romney, did not pay congressional 
salary to those Members of the House who were during World War II on 
leaves of absence because of service in the armed forces. The action 
was taken because such service was construed as incompatible with House 
service.(6)
---------------------------------------------------------------------------
 6. See H. Rept. No. 2037, from the Committee on House Accounts, to 
        accompany H. Res. 512, 79th Cong. 2d Sess. (H. Res. 512 
        authorized the Sergeant at Arms to pay the widow of a deceased 
        ex-Member the difference between his congressional pay and his 
        military pay, where the ex-Member had obtained a leave of 
        absence from the House to serve in the armed forces. In 
        accordance with the practice of the Sergeant at Arms during the 
        war, neither the Member nor his widow could draw full 
        compensation for both positions.)
---------------------------------------------------------------------------

Sec. 4.7 The House passed a bill denying extra compensation for any 
    Member appointed as a United Nations representative, thereby 
    avoiding in such cases the prohibition against holding incompatible 
    offices.

    On Dec. 18, 1945, the House was considering a proposed bill to 
provide for the participation of the United States in the United 
Nations.(7) A committee amendment was offered to the bill, 
denying compensation for the position of

[[Page 707]]

representative to the United Nations for any Member 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.(8) Before the House agreed to 
the amendment,(9) Mr. Sol Bloom, of New York, explained that 
it would not preclude a Member appointed as representative to the 
United Nations from receiving an expense allowance for duties connected 
with that office.(10)
---------------------------------------------------------------------------
 7. 91 Cong. Rec. 12267, 79th Cong. 1st Sess.
 8. See the House report on said amendment, 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).
 9. 91 Cong. Rec. 12286, 79th Cong. 1st Sess.
10. 91 Cong. Rec. 12281, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

Waiver of Salary

Sec. 4.8 When a Member was imprisoned for a criminal offense for a 
    four-month period during a term of Congress, he instructed the 
    Sergeant at Arms to return his salary to the Treasury during that 
    four-month period.

    On May 3, 1956, Mr. Thomas A. Lane, of Massachusetts, requested by 
letter the Sergeant at Arms of the House to return his congressional 
salary covering the period from May 7, 1956, to Sept. 7, 1956, to the 
Treasury of the United States. During that four-month period, Mr. Lane 
served a criminal sentence for income tax evasion.(11)
---------------------------------------------------------------------------
11. See U.S. v Lane, United States District Court for Massachusetts, 
        Criminal No. 56-51-W.
---------------------------------------------------------------------------

Sec. 4.9 A Senator-elect who continued to hold an incompatible office 
    beyond the convening of Congress waived his congressional salary up 
    to the time he resigned that office and took the oath.

    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.(12) 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

[[Page 708]]

New York until the day he appeared to take the oath of office in the 
Senate.(13) Mr. Javits waived his congressional salary for 
the period prior to his taking of the oath.(14)
---------------------------------------------------------------------------
12. 103 Cong. Rec. 340, 85th Cong. 1st Sess.
13. Biographical Directory of the American Congress 1774-1971, S. Doc. 
        No. 92-8 pp. 1183, 1184, 92d Cong. 1st Sess. (1971).
14. Senate Manual Sec. 863 (1971) (statistical section).
            An early opinion of the Attorney General proposed that 
        until taking the oath a Representative-elect could receive 
        salary for both his congressional position and his incompatible 
        office. 14 Op. Att'y Gen. 408 (1874), cited at 2 USCA Sec. 25.
---------------------------------------------------------------------------

Retirement, Health, and Insurance Benefits

Sec. 4.10 Members are eligible for Civil Service retirement, health, 
    and insurance benefits.

    Members of Congress may elect to participate in a Civil Service 
Retirement System, initiated for them by the Legislative Reorganization 
Act of 1946.(15) To fund the optional program, deductions 
are made from the Member's congressional salary.(16) Members 
may also elect to receive life and health insurance.(17)
---------------------------------------------------------------------------
15. Pub. L. No. 79-601, 60 Stat. 850, Ch. 753, Sec. 602, Aug. 2, 1946, 
        codified in 5 USC Sec. 8331(2). A Member or Delegate must give 
        notice in writing to the official by whom paid in order to 
        become subject to retirement.
16. 5 USC Sec. 8334. As of 1973, the deduction was eight percent of 
        salary. To be eligible for benefits, an ex-Member must be at 
        least 62 years old and have completed at least five years 
        civilian service or be at least 60 years old and have completed 
        10 years Member service. 5 USC Sec. 8336(f).
            There is no mandatory retirement age for Members of 
        Congress. See 5 USC Sec. 8335.
17. 5 USC Sec. 8901-8905 (health); 5 USC Sec. Sec. 8701, 8702 (life).
---------------------------------------------------------------------------

Sec. 4.11 Where Members were shot by persons in the House Gallery, the 
    House adopted a resolution paying from the contingent fund amounts 
    to defray hospital, medical, and nursing expenses in the treatment 
    of their injuries.

    On Mar. 4, 1954,(18) the House authorized by resolution 
that there be paid out of the contingent fund of the House necessary 
amounts to defray the medical expenses and the treatment of injuries of 
those Members of the House who were hit by bullets fired by several 
occupants of the House galleries on Mar. 1, 1954. Mr. Charles A. 
Halleck, of Indiana, delivered remarks in explanation of the 
resolution:
---------------------------------------------------------------------------
18. 100 Cong. Rec. 2709, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Halleck: Mr. Speaker, I ask unanimous consent for the 
    immediate consideration of House Resolution 456.

[[Page 709]]

        The Clerk read as follows:

            Resolved, That there shall be paid out of the contingent 
        fund of the House such amounts as may be necessary to defray 
        hospital, medical, and nursing expenses in the treatment of 
        injuries incurred in the House of Representatives by its 
        Members during the session of the House on March 1, 1954.

        The Speaker: (19) Is there objection to the present 
    consideration of the resolution?
---------------------------------------------------------------------------
19. Joseph W. Martin, Jr. (Mass.).
---------------------------------------------------------------------------

        Mr. [Sam] Rayburn [of Texas]: Mr. Speaker, reserving the right 
    to object, and of course I am not going to, will the gentleman from 
    Indiana explain the resolution?
        Mr. Halleck: Mr. Speaker, this resolution was introduced by our 
    colleague from Michigan [Mr. Cederberg], a very close friend of one 
    of our colleagues who was injured the other day.
        The purpose of the resolution is to provide for payment out of 
    the contingent fund of the House of the necessary medical and 
    hospital expenses for our five colleagues who were so tragically 
    wounded on the House floor the other day. They were here on duty in 
    the House of Representatives. It seems to me and to everyone with 
    whom I have discussed this matter it is only fair and right that 
    the hospital and medical expenses which they are incurring in the 
    treatment of their wounds be borne out of the contingent fund of 
    the House of Representatives.
        Mr. Rayburn: Mr. Speaker, I withdraw my reservation.
        The Speaker: Is there objection to the request of the gentleman 
    from Indiana [Mr. Halleck]?
        There was no objection.

Salary of Deceased Member

Sec. 4.12 The Committee on the Judiciary and not on House 
    Administration has jurisdiction of resolutions providing that the 
    Comptroller General approve payment of the claim of the estate of a 
    former Member for salary due to such former Member.

    On Aug. 5, 1954,(20) Mr. Carl M. LeCompte, of Iowa, 
asked unanimous consent that House Resolution 301 (below) be rereferred 
from the Committee on House Administration to the Committee on the 
Judiciary, since the resolution had the elements of a claim. There was 
no objection.
---------------------------------------------------------------------------
20. 100 Cong. Rec. 13469, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

    House Resolution 301 reads as follows:

        Resolved, That in order to enable the Comptroller General to 
    certify for payment, under the provisions of 31 USC Sec. 712b, the 
    claim of the estate of the late James M. Hazlett, a Member of the 
    Seventieth Congress, who took office on March 4, 1927, and who 
    resigned therefrom effective October 20, 1927, for the sum of 
    $6,305.42, which sum represents the salary due and unpaid Mr. 
    Hazlett for such period of service, the Speaker is hereby 
    authorized, in pursuance of the provisions of 2 USC Sec. 48, to 
    certify the proper salary

[[Page 710]]

    certificates covering such period of congressional service.

    In the next Congress, on June 20, 1955,(1) unanimous 
consent was granted that House Resolution 269, authorizing payment of 
the salary due to Mr. Hazlett, deceased, be referred to the Committee 
on the Judiciary.
---------------------------------------------------------------------------
 1. 101 Cong. Rec. 8757, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 4.13 On one occasion, the House paid to the widow of an ex-Member 
    the difference between his past due congressional pay and his 
    military pay, where he had obtained a leave of absence to enter the 
    military and later resigned his House seat to remain in the 
    service.

    On May 14, 1946,(2) the House adopted the following 
resolution:
---------------------------------------------------------------------------
 2. 92 Cong. Rec. 4998, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That the Sergeant at Arms of the House of 
    Representatives is hereby authorized and directed to pay to 
    Catherine L. Harrington the sum of $2,448.76, which sum represents 
    a difference between the congressional pay and military pay of her 
    late husband, Vincent F. Harrington, a member of the Seventy-
    seventh Congress, who obtained a leave of absence therefrom, 
    effective May 8, 1942, to enter the military service, and who 
    resigned his congressional office on September 4, 1942.

    In House Report No. 2307, accompanying the resolution, it was 
indicated that the resolution was drafted to comply with the practice 
of the Sergeant at Arms of the House during World War II of not 
disbursing congressional salary to those Members who took leaves of 
absence to serve in the military.(3)
---------------------------------------------------------------------------
 3. See Sec. 4.6, supra.
---------------------------------------------------------------------------



 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 5. Leaves of Absence

    While the House is in session, every Member must be present, unless 
excused or necessarily prevented from attendance.(4) There 
are two types of authorized absences, excused absences and leaves of 
absence. The former are temporary in nature and are granted during the 
call of the roll. This section discusses leaves of absence granted by 
the House, which are more permanent in nature, lasting at least one 
day's leave.
---------------------------------------------------------------------------
 4. Rule VIII clause 1, House Rules and Manual Sec. 656 (1973).
---------------------------------------------------------------------------

    A request for leave of absence for a Member is usually presented by 
another Member following the legislative program for the 
day.(5) Although requests for leaves may be presented orally 
from the floor, they are properly presented by filing with the Clerk 
the printed form which is made available at

[[Page 711]]

the desk of the Sergeant at Arms.(6) The requests are 
normally granted by unanimous consent, although they may be 
refused.(7) Requests for leaves of absence may be challenged 
as not being on official business, although in current practice Members 
do not challenge the good faith of others in asking 
leave.(8)
---------------------------------------------------------------------------
 5. See 4 Hinds' Precedents Sec. 3151.
 6. See 6 Cannon's Precedents Sec. 199.
 7. See 2 Hinds' Precedents Sec. Sec. 1142-1145.
 8. See Sec. Sec. 5.5, 5.6, infra.
---------------------------------------------------------------------------

    As shown in the excerpt from the Record below, the reason for a 
leave of absence may be simply stated as ``official business'' or may 
be specified, as in the case of illness in the Member's family: 
(9)
---------------------------------------------------------------------------
 9. 116 Cong. Rec. 36769, 91st Cong. 2d Sess., Oct. 14, 1970.
---------------------------------------------------------------------------

        By unanimous consent, leave of absence was granted to:
        Mr. Thompson of New Jersey (at the request of Mr. O'Hara) on 
    account of family illness.

        Mr. Blanton (at the request of Mr. Jones of Tennessee), for 
    today, on account of official business.
        Mr. Lowenstein (at the request of Mr. Albert), for today, on 
    account of official business.
        Mr. Price of Texas (at the request of Mr. Arends), on account 
    of emergency appendectomy.
        Mr. Baring (at the request of Mr. Burton of California), for 
    today, on account of official business

    The statutes authorize the Sergeant at Arms to levy pro rata 
deductions on the salaries of Members or Delegates absent for other 
than their sickness or the sickness of family members.(10) 
In addition, the Sergeant at Arms may deduct an amount equal to 
allowable mileage from congressional salary, where the Member withdraws 
from his seat and does not return before the adjournment of Congress 
without obtaining leave.(11) Not since 1914, however, have 
those provisions been enforced.(12) Due to the number of 
Members, and to the proliferation of their official duties in Congress, 
committee field work, and in their home states, enforcement is no 
longer feasible
---------------------------------------------------------------------------
10. 2 USC Sec. 39, which has been construed as a congressional 
        recognition that the money in the hands of the Sergeant at Arms 
        is under his official control. Crain v U.S., 25 Ct. Cl. 204 
        (1890).
11. 2 USC Sec. 40.
12. See Sec. 5.1, infra.
---------------------------------------------------------------------------

                            Cross References
Administration of oath to absentees, see Ch. 2, supra.
Salary deduction for unauthorized leave, Sec. 4, supra.
Application of constitutional immunities while absent, Sec. Sec. 15-18, 
    infra.
Compelling attendance of Members upon the House, Ch. 20, infra.

[[Page 712]]

                          -------------------Salary Deductions for 
    Unauthorized Absence

Sec. 5.1 Since 1914, no deductions have been taken from Members' 
    salaries for unauthorized leaves of absence.

    The last docking of pay for unauthorized absences was accomplished 
by resolution on Aug. 25, 1914.(13)
---------------------------------------------------------------------------
13. 6 Cannon's Precedents Sec. 198.
---------------------------------------------------------------------------

Statement of Voting Position

Sec. 5.2 After a Member has taken a leave of absence, he may by 
    unanimous consent insert in the Record a statement on how he would 
    have voted on matters considered during his absence.

    On Dec. 21, 1970,(14) Mr. Harold R. Collier, of 
Illinois, was granted unanimous consent to insert in the Record the 
statement of the manner in which he would have voted during his leave 
of absence of the prior week, had he been present in the House. Mr. 
Collier then listed in the Record the roll calls that were voted on the 
prior week, the subject of each roll call, and the vote he would have 
made thereon.
---------------------------------------------------------------------------
14. 116 Cong. Rec. 43136, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

Leave for Military Service

Sec. 5.3 At the beginning of World War II, the House granted leaves of 
    absence to Members for training and service in the Armed Forces of 
    the United States.

    On June 10, 1941,(15) the House granted a leave of 
absence to a Member for three weeks, in order to attend military 
training as a lieutenant colonel in the Officers Reserve Corps:
---------------------------------------------------------------------------
15. 87 Cong. Rec. 4991, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

                                Leave of Absence

            By unanimous consent, leave of absence was granted to Mr. 
        Scrugham, for 3 weeks, on account of military training, Army 
        antiaircraft artillery school.

    On Oct. 23, 1941,(16) the House granted indefinite 
leaves of absence to a Member for duty as a military officer:
---------------------------------------------------------------------------
16. 87 Cong. Rec. 8210, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Schuyler Otis] Bland [of Virginia]: Mr. Speaker, our 
    colleague from Virginia, Hon. Dave E. Satterfield, Jr., has long 
    been a member of the Naval Reserve, and has been ordered to 
    temporary duty. I ask unanimous consent that he be granted leave of 
    absence indefinitely.
        The Speaker: (17) Is there objection to the request 
    of the gentleman from Virginia?
---------------------------------------------------------------------------
17. Sam Rayburn (Tex.).

---------------------------------------------------------------------------

[[Page 713]]

        There was no objection.

    Similar leaves of absence were granted on May 8, 
1942.(18)
---------------------------------------------------------------------------
18. 88 Cong. Rec. 4028, 77th Cong. 2d Sess.
            A number of other Members took leaves for military service. 
        See H. Rept. No. 2037, accompanying H. Res. 512, 79th Cong. 2d 
        Sess.
---------------------------------------------------------------------------

Sec. 5.4 During World War II, Members absent from the House for 
    military service returned to their congressional duties after the 
    War and Navy Departments stated their opposition and after those 
    Members ceased receiving congressional salary.

    Immediately prior to and during the first months of World War II, 
various Members took leaves of absence in order to serve in the 
military.(19) On June 1, 1942, however, there were inserted 
in the Congressional Record letters from the Secretary of War and 
Secretary of the Navy opposing the enlistment or commissioning of 
Members since they could render greater service by continuing to 
represent their constituents.(20) And in accordance with an 
opinion given him by the Comptroller General, the Sergeant at Arms of 
the House ceased paying congressional salary to those Members absent on 
military service.(1)
---------------------------------------------------------------------------
19. See Sec. 5.3, supra.
20. 88 Cong. Rec. A-2015, 77th Cong. 2d Sess.
 1. See H. Rept. No. 2037, accompanying H. Res. 512, 79th Cong. 2d 
        Sess.
---------------------------------------------------------------------------

    Most of those Members then resigned from the military and returned 
to attendance in the House.(2)
---------------------------------------------------------------------------
 2. See Sec. 14, infra, for more complete details on the military 
        service of Members.
---------------------------------------------------------------------------

Challenging Requests for Leave

Sec. 5.5 The good faith of a Member in requesting a leave of absence is 
    not customarily questioned by other Members of the House.

    On Sept. 29, 1967,(3) when Mr. Charles A. Vanik, of 
Ohio, arose to reserve the right to object to requests presented for 
leaves of absence, the House Minority Leader, Gerald R. Ford, of 
Michigan, commented as follows on the reservation of objection:
---------------------------------------------------------------------------
 3. 113 Cong. Rec. 27314, 27315, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Gerald R. Ford: Mr. Speaker, I did not hear the full 
    observation or comment of the gentleman from Ohio, but I would only 
    say this: To my knowledge, in my 19 years here, I have never heard 
    anybody on either side of the aisle challenge the good faith of a 
    Member who was seeking leave of absence on account of official 
    business.

[[Page 714]]

    Mr. Vanik withdrew his reservation of objection.

Sec. 5.6 On one occasion a Member, proceeding under a reservation of 
    objection to a request for leaves of absence for certain Members on 
    ``official business,'' questioned whether their business was, in 
    fact, ``official'' and then withdrew his reservation.

    On Sept. 29, 1967,(4) there were laid before the House 
requests of five Members for leaves on official business. Debate on the 
requests proceeded under a reservation of the right to object:
---------------------------------------------------------------------------
 4. 113 Cong. Rec. 27314, 27315, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Charles A.] Vanik [of Ohio]: Mr. Speaker, reserving the 
    right to object, I would like to raise an issue, that two of the 
    gentlemen that asked for official leave, to be absent from sessions 
    from tbe House of Representatives, are among those who have been 
    urging the Speaker to have sessions through Saturday, and to start 
    sessions at 11 o'clock in the morning. I would like to know if this 
    really is official business these two gentlemen are engaged upon, 
    or is it some other kind of mission? . . .
        . . . I was wondering if the distinguished minority leader 
    might be able to clear up the question I raised about these 
    gentlemen, who are among those who are very much responsible for 
    our being here on a bill which we could have finished yesterday. 
    They asked for sessions on Friday and Saturday, and they are not 
    here today, and now they have asked for official leave of absence. 
    I think this is a perfectly bona fide request, and I would like to 
    know, I would like to be assured they are truly involved in 
    something that relates to the business of the House of 
    Representatives.
        Mr. Gerald R. Ford: Mr. Speaker, let me repeat a little 
    differently what I said a moment ago: We have never challenged the 
    veracity of a Member who asked for a leave of absence or the basis 
    on which a Member asked for leave of absence based on the signature 
    of the leader. We do not intend to in the future. We have to do a 
    great deal of business in this Chamber based on faith and trust in 
    one another. I assume when a Member on this side of the aisle asks 
    for a leave of absence on account of official business, that it is 
    for a legitimate purpose. I do not know in this particular case the 
    precise details, but I would suggest the gentleman make his inquiry 
    to the Chair and not to me.
        Mr. [Wayne L.] Hays [of Ohio]: Mr. Speaker, will the gentleman 
    yield?
        Mr. Vanik: I yield to the gentleman from Ohio.
        Mr. Hays: Mr. Speaker, I think it would be fair to assume the 
    two gentlemen in question are on official business and that the 
    letter they sent was a little pleasant demagoguery which did not 
    add too much to anything.
        Mr. Vanik: Mr. Speaker, I will withdraw my opposition, but I 
    think the point has been made. I certainly appreciate the position 
    of the majority leader and the minority leader when they

[[Page 715]]

    submit these requests on behalf of Members. I think the 28 signers 
    of the letter complaining about slowness of business in the House 
    of Representatives have, in effect, questioned the actions of the 
    entire House of Representatives. I think, insofar as they have done 
    this, and tried to discipline the entire House, they themselves are 
    subject to question in their motives and in their own attendance 
    records in the House.
        Mr. Speaker, I withdraw my reservation of objection.
        The several personal requests were agreed to.

Absences Not on Official Business

Sec. 5.7 A leave of absence from a date certain to the end of the 
    session was granted a Member who listed as his reason a desire to 
    be with his family in Europe during the Christmas season.

    On Dec. 20, 1969,(5) the House granted a leave of 
absence by unanimous consent to Mr. Wayne N. Aspinall, of Colorado, 
from Dec. 22, 1969, until the end of the first session, to enable him 
to spend Christmas with his family in Europe.
---------------------------------------------------------------------------
 5. 115 Cong. Rec. 40491, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 5.8 When a Member was imprisoned for a criminal offense for a 
    four-month period during the term of Congress, he instructed the 
    Sergeant at Arms to return his salary to the Treasury during that 
    four-month period.

    On May 3, 1956, Mr. Thomas A. Lane, of Massachusetts, requested by 
letter the Sergeant at Arms of the House to return his congressional 
salary covering the period from May 7, 1956, to Sept. 7, 1956, to the 
Treasury of the United States. During that four-month period, Mr. Lane 
served a criminal sentence for income tax evasion.(6)
---------------------------------------------------------------------------
 6. See U.S. v Lane, United States District Court for Massachusetts, 
        Criminal No. 56-51-W.
---------------------------------------------------------------------------

Sec. 5.9 A Member was granted a leave of absence for maternity reasons.

    On Nov. 1, 1973, a leave of absence was granted to Mrs. Yvonne B. 
Burke, of California. The Record noted: (7)
---------------------------------------------------------------------------
 7. 119 Cong. Rec. 35653, 35662, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        By unanimous consent leave of absence was granted to:
        Mrs. Burke of California (at the request of Mr. Hawkins), on 
    account of maternity leave.

Sec. 5.10 The House granted a leave of absence to a Member, without 
    pay, at his request, while he conducted a

[[Page 716]]

    campaign for another political office.

    On Sept. 20, 1971,(8) a leave of absence was granted 
without pay:
---------------------------------------------------------------------------
 8. 117 Cong. Rec. 32430, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        . . . Mr. Edwards of Louisiana, effective September 8, without 
    pay, on account of the campaign for Governor of the State of 
    Louisiana.


 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 6. Travel

    There are three types of travel by individual Members for which 
they may receive allowances or reimbursement: travel to and from the 
home district; other domestic travel on official House business; and 
limited overseas travel on official House business. Allowances or 
reimbursement must be made pursuant to specific authorization, as the 
congressional compensation dictated by the Constitution (9) 
only extends to pay for official services, and not to reimbursement for 
expenses incurred through performance of such duties.(10)
---------------------------------------------------------------------------
 9. U.S. Const. art. I, Sec. 6, clause 1.
10. Allowances are reimbursement for actual or presumed expenses and 
        are additional and separable from the legal rate of 
        compensation. Smith v U.S., 158 U.S. 346 (1895).
            Where there has been no congressional appropriation for a 
        travel allowance for an extra session of Congress, a 
        Congressman cannot claim a constructive allowance as part of 
        his compensation. Wilson v U.S., 44 Ct. Cl. 428 (1909).
---------------------------------------------------------------------------

    Each Member is entitled to a mileage allowance for travel to and 
from each regular session of Congress.(11) The rate of 
reimbursement for such travel has been maintained at 20 cents a mile if 
by automobile, and at the actual cost of transportation if travel is by 
common carrier. Payments are computed on a basis of actual automobile 
speedometer readings, limited by a standard mileage guide, and are 
credited to the individual Member's account by the Sergeant at Arms at 
the beginning of each session.(12)
---------------------------------------------------------------------------
11. 2 USC Sec. 43. The provision applies to the Resident Commissioner 
        from Puerto Rico and to the Delegates from Guam and the Virgin 
        Islands (see 48 USC Sec. 1715).
12. Regulations of Travel Expenses, issued by the Committee on House 
        Administration, Mar. 1, 1971, p. 20.
---------------------------------------------------------------------------

    Each Member may also be reimbursed, at 12 cents a mile, for a 
certain number of round trips to his home district during the 
session.(13) As alternate payment, a

[[Page 717]]

Member or Delegate may elect to receive a lump-sum payment for 
transportation expenses each calendar year.(14) Members are 
also authorized a home district travel allowance for employees on 
official business.(15)
---------------------------------------------------------------------------
13. The number of round trips per session was formerly codified (see 2 
        USC Sec. 43b-1). In the 92d Congress, however, the Committee on 
        House Administration became empowered by law to periodically 
        review and adjust the allowances of Members, including the 
        travel allowance (see Sec. 6.2, infra).
14. The lump-sum payment was formerly dictated by 2 USC Sec. 43b-1. The 
        Committee on House Administration has since made adjustments to 
        that amount (see Sec. 6.3, infra).
15. See Sec. 6.3, infra.
---------------------------------------------------------------------------

    In the event that a special or extraordinary session is convened in 
addition to the two regular sessions of a Congress, the House may 
provide by resolution for additional mileage allowance for the expense 
incurred.(16) Where Congress fails to appropriate additional 
mileage expense for a special session, however, the Member must bear 
his own expense and cannot claim a ``constructive'' travel 
allowance.(17)
---------------------------------------------------------------------------
16. See Sec. 6.7, infra.
17. Wilson v U.S., 44 Ct. C1. 428 (1909).
---------------------------------------------------------------------------

    The Committee on House Administration has jurisdiction over 
measures relating to the travel of Members.(18) In addition, 
the committee has been authorized to make periodic adjustments in all 
allowances of Members, including the travel allowance, without any 
action required on the part of the House.(19)
---------------------------------------------------------------------------
18. See Sec. 6.1, infra.
19. See Sec. 6.2, infra.
---------------------------------------------------------------------------

    The Sergeant at Arms keeps the accounts of mileage and disburses 
travel allowances to individual Members.(20) Before he may 
disburse such payment, however, the mileage account of each Member must 
be certified by the Speaker, if the House is in session,(1) 
or by the Clerk, if the House is not in session.(2)
---------------------------------------------------------------------------
20. 2 USC Sec. 78 and Rule IV, House Rules and Manual Sec. 649 (1973). 
        Rule IV was amended by H. Res. 5, 92d Cong. 1st Sess., Jan. 22, 
        1971, and by H. Res. 1153, 92d Cong. 2d Sess., Oct. 13, 1972, 
        to entitle Delegates and the Resident Commissioner to the 
        services of the Sergeant at Arms.
 1. 2 USC Sec. 48. The Speaker may designate a substitute to certify 
        the mileage accounts of Members and Delegates. 2 USC Sec. 50.
 2. 2 USC Sec. 49.
---------------------------------------------------------------------------

    Mileage accounts for trips to the home district during a session 
are paid out of the contingent fund of the House.(3)
---------------------------------------------------------------------------
 3. 2 USC Sec. 43b-1 and 2 USC Sec. 57.
---------------------------------------------------------------------------

    The cost of other domestic travel outside the home district may be 
reimbursed by the House if the travel is undertaken on official House 
business. For example, travel for the purpose of performing committee 
business, such

[[Page 718]]

as investigations, may be funded from a committee's 
budget.(4) Likewise, where the House appoints a Member or 
Members to attend meetings or assemblies on behalf of the House, the 
House may by resolution authorize a travel allowance.(5)
---------------------------------------------------------------------------
 4. For funding of committee business, see Ch. 17, infra.
 5. See Sec. 6.5, infra. By statute, Members appointed to attend 
        funeral ceremonies of deceased Members receive reimbursement 
        for travel expenses. 2 USC Sec. 124.
---------------------------------------------------------------------------

    Pursuant to regulations promulgated by the Committee on House 
Administration, the Speaker may designate persons not members or 
employees of a committee to assist in committee investigations and 
therefore obtain travel expenses.(6)
---------------------------------------------------------------------------
 6. Regulations of Travel Expenses, issued by the Committee on House 
        Administration, Mar. 1, 1971, p. 3.
---------------------------------------------------------------------------

    The third type of travel for which a Member may receive government 
funds is overseas travel. Such travel may be funded either through 
specific appropriations or through ``counterpart'' funds. Counterpart 
funds are those foreign currencies credited to the United States, in 
return for aid, which may be spent only in the country of origin. Such 
currencies are made available for Members abroad on the business of 
certain committees.(7) The use of counterpart funds is 
limited by statute and must be specifically authorized.(8) 
Any overseas travel by a committee member must be reported in detail, 
showing the number of days visited in each country, the amount of 
subsistence furnished, and the cost of the transportation. Printed 
forms for the purpose of making such reports are furnished by the 
Committee on House Administration. In addition, each committee must 
file an annual report on the funds spent by Congressmen and committee 
staff members traveling overseas on official business.(9)
---------------------------------------------------------------------------
 7. See 2 USC Sec. 1754(b).
 8. See Sec. Sec. 6.8, 6.9, infra, for instances of restrictions placed 
        on overseas travel by the House. See also the reporting 
        requirements and per diem restrictions of 2 USC Sec. 1754(b).
 9. For a summary of the House regulations relating to reimbursed 
        overseas travel, see Regulations: Travel and Other Expenses of 
        Committees and Members, Committee on House Administration, p. 
        2, 91st Cong., Jan. 1, 1970.
            Congress may also restrict private funding of overseas 
        travel for Congressmen; the 86th Congress agreed to an 
        amendment to a ship construction subsidy bill which restricted 
        free or reduced rate transportation for all federal employees. 
        Pub. L. No. 86-607, 74 Stat. 362, July 7, 1960.
---------------------------------------------------------------------------

                                 Forms

        Forms of joint resolution appropriating mileage allowances for 
    Mem

[[Page 719]]

    bers and others incident to a special session of Congress.

            Resolved, etc., That the following sums are hereby 
        appropriated, out of any money in the Treasury not otherwise 
        appropriated, for the payment of expenses incident to the 
        second session of the Seventy-sixth Congress, namely:
            . . . For mileage of Representatives, the Delegate from 
        Hawaii, and the Resident Commissioner from Puerto Rico, and for 
        expenses of the Delegate from Alaska, $171,000.(10)
---------------------------------------------------------------------------
10. 85 Cong. Rec. 16, 76th Cong. 2d Sess., Sept. 25, 
        1939.                          -------------------
---------------------------------------------------------------------------

Jurisdiction Over Travel

Sec. 6.1 The Committee on House Administration has jurisdiction over 
    travel allowances and their adjustment.

    The Committee on House Administration, created by the Legislative 
Reorganization Act of 1946,(11) has jurisdiction over 
measures relating to travel and has the added function of reporting to 
the Sergeant at Arms the travel of Members.(12)
---------------------------------------------------------------------------
11. 60 Stat. 812.
12. House Rules and Manual Sec. 693 (1973).
---------------------------------------------------------------------------

Adjustments to Travel Allowances

Sec. 6.2 The Committee on House Administration became authorized by law 
    in the 92d Congress to periodically renew and adjust the travel 
    allowances of Members.

    On July 21, 1971, the House agreed to House Resolution 
457,(13) later enacted into permanent law,(14) a 
privileged resolution reported from the Committee on House 
Administration, which empowered that committee to periodically review 
and adjust the allowances of Members without requiring any action by 
the House.
---------------------------------------------------------------------------
13. 117 Cong. Rec. 26451, 92d Cong. 1st Sess.
14. 2 USC Sec. 57, enacted by Pub. L. No. 92-184, Ch. 4, 85 Stat. 636, 
        Dec. 15, 1971.
---------------------------------------------------------------------------

    During debate on the resolution, it was stated by Mr. Frank 
Thompson, Jr., of New Jersey, a member of the committee, that 
adjustment of allowances by the committee would be submitted to the 
House and printed in the Congressional Record on the day following a 
decision.(15)
---------------------------------------------------------------------------
15. 117 Cong. Rec. 26445, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    House Resolution 457 read as follows:

        Resolved, That (a) until otherwise provided by law, the 
    Committee on House Administration may, as the committee considers 
    appropriate, fix and adjust from time to time, by order of the 
    committee, the amounts of allowances (including the terms, condi

[[Page 720]]

    tions, and other provisions pertaining to those allowances) within 
    the following categories:
        (1) for Members of the House of Representatives, the Resident 
    Commissioner from Puerto Rico, and the Delegate from the District 
    of Columbia--allowances for clerk hire, postage stamps, stationery, 
    telephone and telegraph and other communications, official office 
    space and official office expenses in the congressional district 
    represented (including, as applicable, a State, the Commonwealth of 
    Puerto Rico, and the District of Columbia), official telephone 
    services in the congressional district represented, and travel and 
    mileage to and from the congressional district represented; and
        (2) for the standing committees, the Speaker, the majority and 
    minority leaders, the majority and minority whips, the Clerk, the 
    Sergeant at Arms, the Doorkeeper, and the Postmaster of the House 
    of Representatives-allowances for postage stamps, stationery, and 
    telephone and telegraph and other communications.
        (b) The contingent fund of the House of Representatives is made 
    available to carry out the purposes of this resolution.

Sec. 6.3 On several occasions, the Committee on House Administration 
    has submitted orders to the House adjusting the travel allowance of 
    Members and their employees.

    On Dec. 8, 1971,(16) Mr. Frank Thompson, Jr., of New 
Jersey, a member of the Committee on House Administration, submitted 
Order No. 2 of that committee, adjusting the travel allowance of House 
Members, pursuant to authority delegated to that committee by the 
House:
---------------------------------------------------------------------------
16. 117 Cong. Rec. 45608, 45609, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
    To Adjust the Allowance for Travel of Members and Staff to and From 
        Congressional Districts

        Resolved, That effective January 3, 1971, until otherwise 
    provided by order of the Committee on House Administration;
        (a) The contingent fund of the House of Representatives is made 
    available for reimbursement of transportation expenses incurred by 
    Members (including the Resident Commissioner from Puerto Rico and 
    the Delegate from the District of Columbia) in traveling, on 
    official business, by the nearest usual route, between Washington, 
    District of Columbia, and any point in the district which he 
    represents, for not more than 24 round-trips during each Congress, 
    such reimbursement to be made in accordance with rules and 
    regulations established by the Committee on House Administration of 
    the House of Representatives.
        (b) The contingent fund of the House of Representatives is made 
    available for reimbursement of transportation expenses incurred by 
    employees in the office of a Member (including the Resident 
    Commissioner from Puerto Rico and the Delegate from the District of 
    Columbia) for not more than four round-trips during any Congress 
    between Washington, District of Columbia, and any point in the 
    Congressional

[[Page 721]]

    district represented by the Member. Such payment shall be made only 
    upon vouchers approved by the Member, containing a certification by 
    him that such travel was performed on official duty. The Committee 
    on House Administration shall make such rules and regulations as 
    may be necessary to carry out this section.
        (c) This order shall not affect any allowance for travel of 
    Members of the House of Representatives (including the Resident 
    Commissioner from Puerto Rico and the Delegate from the District of 
    Columbia) which is authorized to be paid from funds other than the 
    contingent fund of the House of Representatives.(17)
---------------------------------------------------------------------------
17. For the allowance prior to the order, see 2 USC Sec. 43(b), as 
        amended by Pub. L. No. 90-86, 81 Stat. 226, Sept. 17, 1967.
---------------------------------------------------------------------------

    On Oct. 5, 1972,(18) Mr. Frank Thompson, Jr., of New 
Jersey, submitted a revised Order No. 2 as follows:
---------------------------------------------------------------------------
18. 118 Cong. Rec. 34177, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
    Committee on House Administration: Order No. 2--Revised--To Adjust 
        the Allowance for Travel of Members and Staff to and From 
        Congressional Districts

        Resolved, That effective January 3, 1973, until otherwise 
    provided by order of the Committee on House Administration;
        (a) The contingent fund of the House of Representatives is made 
    available for reimbursement of transportation expenses incurred by 
    Members (including the Resident Commissioner from Puerto Rico) in 
    traveling, on official business, by the nearest usual route, 
    between Washington, District of Columbia, and any point in the 
    district which he represents, for not more than 36-round trips 
    during each Congress, such reimbursement to be made in accordance 
    with rules and regulations established by the Committee on House 
    Administration of the House of Representatives.
        (b) The contingent fund of the House of Representatives is made 
    available for reimbursement of transportation expenses incurred by 
    employees in the office of a Member (including the Resident 
    Commissioner from Puerto Rico) for not more than 6-round trips 
    during any Congress between Washington, District of Columbia and 
    any point in the Congressional district represented by the Member. 
    Such payment shall be made only upon vouchers approved by the 
    Member, containing a certification by him that such travel was 
    performed on official duty. The Committee on House Administration 
    shall make such rules and regulations as may be necessary to carry 
    out this section.
        (c) A Member of the House of Representatives (including the 
    Resident Commissioner from Puerto Rico) may elect to receive in any 
    Congress, in lieu of reimbursement of transportation expenses for 
    such Congress is authorized in paragraph (a) above, a lump sum 
    transportation payment of $2,250 for each Congress. The Committee 
    on House Administration of the House of Representatives shall make 
    such rules and regulations as may be necessary to carry out this 
    section.
        (d) This order shall not affect any allowance for travel of 
    Members of the House of Representatives (including

[[Page 722]]

    the Resident Commissioner from Puerto Rico) which is authorized to 
    be paid from funds other than the contingent fund of the House of 
    Representatives.

Sec. 6.4 Bills increasing the amount of allowable reimbursement for 
    travel expenses for Members and their employees are not called up 
    as privileged.

    On Aug. 4, 1965,(19) a bill to increase the number of 
reimbursable round trips to the home district for each Member and for 
his employees was not called up as privileged since it amended existing 
law, although it did provide for expenditure from the contingent fund.
---------------------------------------------------------------------------
19. 111 Cong. Rec. 19426, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    Similarly, on June 25, 1963,(1) the bill amending the 
Legislative Branch Appropriation Act of 1959 to provide for 
reimbursement of transportation expenses for Members for additional 
trips to their home districts was reported and called up as not 
privileged.
---------------------------------------------------------------------------
 1. 109 Cong. Rec. 11528, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

Travel for Appointees to Boards and Commissions

Sec. 6.5 The House adopted a privileged resolution appropriating from 
    the contingent fund expenses for committee members to attend a 
    meeting of a United Nations agency.

    On Nov. 9, 1943,(2) the House adopted a privileged 
resolution from the Committee on Accounts (H. Res. 349):
---------------------------------------------------------------------------
 2. 89 Cong. Rec. 9337, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

        Resolved, That there shall be paid out of the contingent fund a 
    sum not to exceed $500 to defray the actual expenses of such 
    members of the Committee on Foreign Affairs as may be designated by 
    the chairman thereof, to attend the meeting of the United Nations 
    Relief and Rehabilitation Administration at Atlantic City, N.J., 
    beginning Wednesday, November 10, 1943, on vouchers signed by the 
    chairman and approved by the Committee on Accounts.

Sec. 6.6 Members of a committee appointed to attend an international 
    conference were authorized by resolution to use foreign currencies 
    credited to the United States for travel expenses, where the 
    resolution granting the committee its investigatory authority in 
    the same Congress did not authorize foreign travel.

    On May 29, 1963, the House adopted a resolution called up by Mr. B. 
F. Sisk, of California, by direction of the Committee on

[[Page 723]]

Rules, relating to foreign travel by members of the Committee on 
Education and Labor:

        Resolved, That the Speaker of the House of Representatives is 
    hereby authorized to appoint a member from the majority and a 
    member from the minority of the Committee on Education and Labor to 
    attend the International Labor Organization Conference in Geneva, 
    Switzerland, between June 1. 1963, and June 30, 1963.
        He is further authorized to appoint as alternates a member from 
    the majority and a member from the minority of the said committee.
        Notwithstanding section 1754 of title 22, United States Code, 
    or any other provision of law, local currencies owned by the United 
    States shall be made available to the aforesaid delegates and 
    alternates from the Committee on Education and Labor of the House 
    of Representatives engaged in carrying out their official duties 
    under section 190(d) of title 2, United States Code: Provided, (1) 
    That no member of said committee shall receive or expend local 
    currencies for subsistence in an amount in excess of the maximum 
    per diem rates approved for oversea travel as set forth in the 
    Standardized Government Travel Regulations, as revised and amended 
    by the Bureau of the Budget; (2) that no member of said committee 
    shall receive or expend an amount for transportation in excess of 
    actual transportation costs; (3) no appropriated funds shall be 
    expended for the purpose of defraying expenses of members of said 
    committee in any country where counterpart funds are available for 
    this purpose.
        That each member of said committee shall make to the chairman 
    of said committee an itemized report showing the number of days 
    visited in each country whose local currencies were spent, the 
    amount of per diem furnished and the cost of transportation if 
    furnished by public carrier, or if such transportation is furnished 
    by an agency of the U.S. Government, the identification of the 
    agency. All such individual reports shall be filed by the chairman 
    with the Committee on House Administration and shall be open to 
    public inspection.(3)
---------------------------------------------------------------------------
 3. 109 Cong. Rec. 9799, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    The resolution authorizing the use of ``counterpart'' funds for the 
appointees was necessary, since the resolution adopted in the 88th 
Congress granting the Committee on Education and Labor investigatory 
authority (H. Res. 103) did not authorize foreign travel or the use of 
such funds for foreign travel.

Travel for Extra Sessions

Sec. 6.7 The House by resolution authorized the Clerk to pay from the 
    contingent fund to the Sergeant at Arms an amount to cover 
    additional mileage for Members for attendance at a meeting of 
    Congress at a date earlier than that to which adjourned.

    On Aug. 7, 1948,(4) the House adopted the following 
resolution,

[[Page 724]]

subsequent to the convening of Congress on a date earlier than that to 
which it had adjourned:
---------------------------------------------------------------------------
 4. 94 Cong. Rec. 10247, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That the Clerk of the House of Representatives is 
    authorized and directed to pay to the Sergeant at Arms of the House 
    of Representatives not to exceed $171,000 out of funds appropriated 
    under the head ``Contingent expenses of the House,'' fiscal year 
    1949, for additional mileage of Members of the House of 
    Representatives, Delegates from Territories, and the Resident 
    Commissioner from Puerto Rico, at the rate authorized by law.

    Parliamentarian's Note: The Congress had adjourned from June 20, 
1948, to Dec. 31, 1948. The President called the Congress back into 
session by proclamation on July 26, 1948, for the consideration of 
legislation mentioned in his message to Congress on July 27, 1948.

Overseas Travel

Sec. 6.8 The House adopted in the 88th Congress resolutions with 
    committee amendments, reported from the Committee on Rules, 
    authorizing committees to conduct investigations but restricting 
    their use of counterpart funds (local foreign currencies owned by 
    the United States).(5)
---------------------------------------------------------------------------
 5. For regulations promulgating per diem reimbursement limits and 
        reporting requirements on overseas travel for committee 
        members, see Regulations: Travel and Other Expenses of 
        Committee and Members, Committee on House Administration, 92d 
        Cong., Mar. 1, 1971. For the statutory limitations and 
        reporting requirements on use of such funds, passed into law in 
        the 88th Congress, see 22 USC Sec. 1754, as amended by Pub. L. 
        No. 88-633, Pt. IV, Sec. 402, 78 Stat. 1015, Oct. 7, 1964.
---------------------------------------------------------------------------

    On Jan. 31, 1963, and Feb. 18, 1963, the Committee on Rules offered 
a number of resolutions authorizing certain House committees to conduct 
investigations. The committee offered amendments to each of those 
resolutions in relation to the use by committee members of 
``counterpart'' funds, i.e., foreign currencies, credited to the United 
States in return for aid, which may be spent only in the country of 
origin.(6) The amendments agreed to by the House were those 
limiting overseas travel for Members to a maximum per diem rate, 
limiting expenses to actual transportation, and requiring counterpart 
funds to be exhausted before appropriated funds were 
used.(7)
---------------------------------------------------------------------------
 6. For a discussion of counterpart funds, past abuses in relation to 
        them, and the purposes of the committee amendments, see the 
        discussion at 109 Cong. Rec. 1556-59, 88th Cong. 1st Sess., 
        Jan. 31, 1963.
 7. Id. at p. 1547.

---------------------------------------------------------------------------

[[Page 725]]

    For 10 other House committees, the House agreed to amendments 
authorizing no counterpart funds for members of those 
committees.(8) However, denial of such authorization did not 
preclude a committee from requesting specific authorization of the 
Committee on Rules for overseas travel funds for specific 
purposes.(9)
---------------------------------------------------------------------------
 8. Id. at pp. 1547-59; see also 109 Cong. Rec. 2463, 88th Cong. 1st 
        Sess., Feb. 18, 1963.
 9. 109 Cong. Rec. 1548, 1549, 1552, 88th Cong. 1st Sess., Jan. 31, 
        1963.
---------------------------------------------------------------------------

Sec. 6.9 Where members of a committee have no authority, under the 
    committee's investigatory resolution, to travel overseas or to use 
    foreign currencies while on committee business, the House may grant 
    such authority when the Speaker appoints members of that committee 
    as delegates to an international conference.

    On May 31, 1963, Speaker John W. McCormack, of Massachusetts, 
appointed several delegates from the Committee on Education and Labor 
to attend the International Labor Organization Conference in 
Switzerland.(10) By virtue of that appointment, the 
delegates were authorized to travel overseas on official business and 
to use foreign currencies credited to the United States (pursuant to H. 
Res. 368) although the House Committee on Rules had previously 
disallowed use of governmental funds for overseas travel by members of 
the Committee on Education and Labor.(11)
---------------------------------------------------------------------------
10. 109 Cong. Rec. 9896, 88th Cong. 1st Sess.
11. 109 Cong. Rec. 1553, 88th Cong. 1st Sess., Jan. 31, 1963. See 
        Sec. 6.6, supra, for further discussion.
---------------------------------------------------------------------------


 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 7. Franking

    The franking privilege is the statutory right of Representatives to 
send certain material through the United States' mails without postage 
cost to themselves,(12) the cost being paid from public 
revenues.(13) Members, along with

[[Page 726]]

other federal officials, have enjoyed the privilege almost continuously 
from the founding of the Republic.(14) Although the scope 
and applicability of franking has varied through the history of 
Congress, only during a brief period in the 19th century was the 
privilege totally abolished.(15)
---------------------------------------------------------------------------
12. For a statutory synopsis, see House Rules and Manual Sec. 984 
        (1973). See also ``Law and Regulations Regarding Use of the 
        Congressional Frank,'' Subcommittee on Postal Service, 
        Committee on Post Office and Civil Service, 92d Cong. 1st Sess. 
        (1971).
            Case decisions on the franking privilege are summarized in 
        ``The Franking Privilege of Members of Congress,'' special 
        report of the Joint Committee on Congressional Operations, 92d 
        Cong. 2d Sess. (Oct. 16, 1972).
13. Postage on franked correspondence is paid by a lump-sum 
        appropriation to the legislative branch, which revenue is then 
        paid to the postal service. 39 USC Sec. 3216(a).
14. See 1 Stat. 237, Feb. 20, 1792, an act which codified the 
        entitlement of Representatives to use the frank. The passage of 
        the act continued the practice which was established by the 
        Continental Congress (see XXIII Journals of the Continental 
        Congress, pp. 670-679).
15. The Act of Jan. 31, 1873, 17 Stat. 421, effective July 1, 1873, 
        abolished the franking privilege. Limited use of the frank was 
        reinstated in 1875 by 18 Stat. 343, Sec. Sec. 5, 7, Mar. 30, 
        1875.
---------------------------------------------------------------------------

    Members, Members-elect, House officers, and others entitled to the 
franking privilege may, until the first day of April following the 
expiration of their term of office, send free through the mails, under 
their frank, any matter relating to their ``official business, 
activities, and duties, as intended'' under the guidelines set out in 
title 39 of the United States Code.(16) The controlling 
statute prohibits franked mail containing certain material that is 
``purely personal or political'' and prohibits ``mass mailings'' less 
than 28 days before elections in which the Member is a 
candidate.(17) It allows franked mailing ``with a simplified 
form of address for delivery'' (patron or occupant mail, for example) 
within certain limits.(18) Another provision (Sec. 3211)

[[Page 727]]

permits the officers as well as Members of the House to send and 
receive public documents through the mail until the first day of April 
following the expiration of their terms of office. And the 
Congressional Record, or any part or reprint of any part thereof, 
including speeches and reports contained therein, may be sent as 
franked mail, if consistent with the guidelines for such mail set out 
in section 3210. Seeds from the Department of Agriculture may be sent 
under the frank pursuant to section 3213.
---------------------------------------------------------------------------
16. Prior to the enactment of Pub. L. No. 93-191, 39 USC Sec. 3210 
        permitted franked mailing of certain matter on official or 
        departmental business by a government official. That language 
        resulted in uncertainty as to the scope of the privilege, and 
        up until 1968 the Post Office Department, now the United States 
        Postal Service, inquired on occasion into the proper use of the 
        frank (see Sec. 7.2, infra). For interpretation by the House 
        Committee on Post Office and Civil Service prior to the 
        enactment of Pub. L. No. 93-191, see Committee Print, Law and 
        Regulations Regarding Use of the Congressional Frank, 
        Subcommittee on Postal Service, Committee on Post Office and 
        Civil Service, 92d Cong. 1st Sess. (1971).
            For two notable judicial decisions on the scope of the 
        franking privilege (decided prior to the passage of Pub. L. No. 
        93-191, clarifying the use of the frank), see Hoellen v 
        Annunzi, 468 F2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 
        953 (1973) and Schiaffo v Helstoski, 350 F Supp 1076 (D.N.J. 
        1972), rev'd 492 F2d 413 (1974).
17. 39 USC Sec. 3210(a) (5).
18. 39 USC Sec. 3210(d). Such mailings, within certain requirements, 
        are also allowed to Members-elect, Delegates and Delegates-
        elect, and Resident Commissioners and Resident Commissioners-
        elect.
            For judicial decisions, prior to the enactment of Pub. L. 
        No. 93-191, relating to the area within which a Member of 
        Congress could send such franked mail, see Hoellen v Annunzio, 
        468 F2d 522 (7th Cir. 1972), cert. denied, 412 U.S. 953 (1973); 
        Rising v Brown, 313 F Supp 824 (D.C. Calif. 1970).
---------------------------------------------------------------------------

    In the event a Member, Delegate, or Resident Commissioner dies in 
office, the surviving spouse may send under the frank nonpolitical 
correspondence relating to the death for a period of 180 days 
thereafter under section 3218. In preparing material to be sent out 
under his frank, a Member is entitled to the services of the Public 
Printer.(19) The person entitled to the use of a frank may 
not loan it to another (Sec. 3215).
---------------------------------------------------------------------------
19. Under 44 USC Sec. 733, the Public Printer furnishes printed blank 
        franks for mailing of public documents, and prints on official 
        envelopes the Member's name, date, and topic, not to exceed 12 
        words.
            Under 44 USC Sec. 907, the Public Printer furnishes Members 
        with envelopes for mailing the Congressional Record or parts 
        thereof.
---------------------------------------------------------------------------

                            Cross References
Postage stamp allowance, Sec. 8, infra.
Application of constitutional immunity to material mailed under the 
    frank, Sec. Sec. 15-17, infra.

                         Collateral References
Committee Print, Law and Regulations Regarding Use of the Congressional 
    Frank, Subcommittee on Postal Service, Committee on Post Office and 
    Civil Service, 92d Cong. 1st Sess. (1971).
The Franking Privilege of Members of Congress, Special Report of the 
    Joint Committee on Congressional Operations, 92d Cong. 2d Sess. 
    (Oct. 16 1972).
The Franking Privilege of Members of Congress, Committee Print, Joint 
    Committee on Congressional Operations, 92d Cong. 2d Sess., 
    Identifying Court Proceedings and Actions of Vital Interest to the 
    Congress (Oct. 16, 
    1972).                          -------------------

Congressional Guidelines on Franking

Sec. 7.1 In the 93d Congress, the Congress passed into law a bill to 
    clarify the proper use

[[Page 728]]

    of the franking privilege, restricting judicial review of franking 
    practices, and creating an advisory and investigatory commission on 
    the use of the frank.

    Public Law No. 93-191 (87 Stat. 737), originally reported as H. R. 
3180 by the Committee on Post Office and Civil Service, amended title 
39 of the United States Code to clarify the proper use of the franking 
privilege by Members of Congress, and established a special commission 
of the House of Representatives entitled the ``House Commission on 
Congressional Mailing Standards.''
    The law amended title 39, section 3210 to define the scope of 
permissible use of the frank in assisting and expediting the conduct of 
the ``official business, activities, and duties of the Congress of the 
United States.'' (20) The commission provides guidance to 
Members, promulgates regulations, and renders decisions on the use of 
the frank. Under the controlling statute, the jurisdiction of courts to 
inquire into the permissible use of the frank is limited.
---------------------------------------------------------------------------
20. Prior to the enactment of Pub. L. No. 93-191, a variety of federal 
        court decisions inquired into the permissible use of the 
        franking privilege and limited the scope of ``official 
        business'' in relation to the use of the frank. See, for 
        example, Hoellen v Annunzio, 468 F2( 522 (1972), cert. denied, 
        412 U.S. 953 (1973); Schiaffo v Helstoski, 350 F Supp 1076 
        (1972), rev'd 492 F2d 413 (1974).
---------------------------------------------------------------------------

Postal Service Interpretation and Enforcement

Sec. 7.2 Beginning in 1968, the Post Office Department and its 
    successor, the U.S. Postal Service, discontinued the interpretation 
    and enforcement of statutes regulating the franking privilege.

    On Dec. 26, 1968, the General Counsel of the Post Office Department 
issued a memorandum (1) to Congress stating that the 
department would no longer interpret the laws on the use of the 
congressional frank,(2) and would no longer attempt to 
enforce the statutes and regulations by requesting payment of postage 
for material allegedly improperly franked.(3) The memorandum 
also

[[Page 729]]

stated that the department would continue to tender to individual 
Members, on their request, advisory opinions on particular material 
sought to be franked.
---------------------------------------------------------------------------
 1. Reprinted in ``Law and Regulations Regarding Use of the 
        Congressional Frank,'' Subcommittee on Postal Service of the 
        Committee on Post Office and Civil Service, Committee print No. 
        14, 92d Cong. 1st Sess., p. 1 (1971).
 2. For an example of Post Office Department interpretations issued 
        prior to 1968, see ``The Congressional Franking Privilege,'' 
        publication No. 126, Post Office Department (Apr. 1968).
 3. See publication No. 126, id. at p. 1. According to a Comptroller 
        General decision, No. B128938, Aug. 16, 1956, the Post Office 
        Department had authority to collect postage which should have 
        been paid on material not properly franked.
---------------------------------------------------------------------------

    After the Post Office Department was converted in 1971 to an 
independent U.S. Postal Service,(4) the General Counsel of 
the Postal Service informed the Chairman of the House Committee on Post 
Office and Civil Service that the new service would not only refrain 
from enforcement of statutes and regulations on the congressional 
frank, but would also cease rendering advisory opinions.(5)
---------------------------------------------------------------------------
 4. See the Postal Reorganization Act, Pub. L. No. 91-375, 84 Stat. 
        719, Aug. 2, 1970 (effective July 1, 1971).
 5. Letter of Mr. David Nelson to Chairman Thaddeus Dulski (N.Y.) Aug. 
        12, 1971, reprinted in ``Law and Regulations Regarding Use of 
        the Frank,'' Subcommittee on Postal Service, Committee on Post 
        Office and Civil Service, Committee print No. 14, 921 Cong. 1st 
        Sess., p. 6 (1971).
---------------------------------------------------------------------------

Franking ``Patron'' Mail

Sec. 7.3 Where a Senate amendment to a legislative appropriation act 
    prohibited the sending of ``patron'' mail under the frank of any 
    Member of Congress,(6) the House concurred in the Senate 
    amendment with an amendment prohibiting such mail under a Senator's 
    frank but permitting a House Member to use his frank for mail 
    addressed to patrons within his own congressional district.
---------------------------------------------------------------------------
 6. ``Patron'' mail is mail identified with the Member's frank, with 
        neither a name or address but marked ``occupant'' or 
        ``patron,'' and distributed by postal carriers to every postal 
        patron on an established route. See the testimony of Postmaster 
        General Day, Hearings Before a Subcommittee of the Committee on 
        Appropriations, U.S. Senate, 88th Cong. 1st Sess., p. 256 
        (1963).
---------------------------------------------------------------------------

    On Dec. 17, 1963,(7) the House was considering a Senate 
amendment to a legislative appropriation bill which prohibited the use 
of the franking privilege by any Member of Congress for delivery of 
mailings to postal patrons (``occupant'' mail). The House amended the 
Senate amendment by prohibiting that use of the franking privilege by 
Senators but not for Members of the House. The amendment limited such 
mailings to the Representative's immediate congressional district.
---------------------------------------------------------------------------
 7.  109 Cong. Rec. 24831, 24832, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    The Senate agreed to the amendment on the following day,

[[Page 730]]

and the provision became permanent law.(8)
---------------------------------------------------------------------------
 8. 109 Cong. Rec. 25025, 25026, 88th Cong. 1st Sess.
            In the two preceding fiscal years, the Senate and House had 
        disagreed over the inclusion of patron mail within the franking 
        privilege (see Pub. L. No. 87-332, 75 Stat. 747, Sept. 30, 1961 
        and Pub. L. No. 87-730, 76 Stat. 694, Oct. 2, 1962). A Senate 
        report (S. Rept. No. 88-313), 88th Cong. 1st Sess. explained in 
        part the 1963 compromise as follows at p. 6: ``While in the 
        past the [Appropriations] Committee has voted to bar the use of 
        the simplified and occupant mailing privileges to all Members 
        of Congress and has not changed its opinion, it is believed in 
        the interest of comity and understanding that the committee 
        should make the prohibition applicable solely to the U.S. 
        Senate.'' The report added: ``The Constitution provides that 
        each House may determine the rules of its proceedings. While 
        the mailing privilege does not specifically come under the 
        rules of either body, in view of the past history of this 
        legislation the committee believes each House should make its 
        own determination in this regard.''
---------------------------------------------------------------------------

Franking and the Congressional Record

Sec. 7.4 The Solicitor General informed a Member of Congress that the 
    franking privilege extended to any material printed in the 
    Congressional Record.(9)
---------------------------------------------------------------------------
 9. See 39 USC Sec. 3212, as amended by Pub. L. No. 93-191, 87 Stat. 
        741, which allows the sending of the Record, or any part 
        thereof, or speeches or reports contained therein. See also 
        Straus v Gilbert, 193 F Supp 214 (S.D.N.Y. 1968) (under 39 USC 
        Sec. 3212, Congressmen could send as franked mail, within and 
        without his congressional district, material reprinted from the 
        Congressional Record, even if mailed for election campaign 
        purposes) .
---------------------------------------------------------------------------

    On Jan. 28, 1944,(10) there was inserted in the Record a 
letter from the Solicitor General of the Post Office Department stating 
that all material in the Congressional Record, regardless of the place 
of printing or the style of type, could be sent out under the franking 
privilege. The latter added that extracts from the Congressional Record 
should bear identifying marks to clearly demonstrate that they appeared 
in the Congressional Record.
---------------------------------------------------------------------------
10. 90 Cong. Rec. 879, 880, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

Abuse of Frank as Question of Privilege

Sec. 7.5 Public charges of misuse of the franking privilege give rise 
    to a question of personal privilege.

    On Jan. 28, 1944,(11) Speaker pro tempore John W. 
McCormack, of Massachusetts, ruled that a

[[Page 731]]

question of personal privilege had been stated when a Member presented 
a newspaper article quoting a book containing an accusation that a 
Member permitted the use of his frank by one of questionable 
character.(12)
---------------------------------------------------------------------------
11. 90 Cong. Rec. 879, 78th Cong. 2d Sess.
12. 39 USC Sec. 3215, enacted into law by Pub. L. No. 91-375, 84 Stat. 
        754, Aug. 12, 1970, prohibits a Member from lending or 
        permitting another to use his frank.
---------------------------------------------------------------------------




 
                               CHAPTER 7
 
                              The Members
 
                     B. COMPENSATION AND ALLOWANCES
 
Sec. 8. Office and Personnel Allowances; Supplies

    Congress has established a variety of allowances and allotments 
which enable Members to equip, staff, and operate offices, both in the 
Capitol and in the home district.(13) Some allotments are 
furnished in kind with no dollar limit, such as office space in federal 
buildings.(14) Other allotments are limited to a certain 
dollar value, such as postage stamps (15) and electrical 
office equipment furnished to Members.(16) Other expenses of 
Members are reimbursed by the House up to a certain limit, such as 
telephone service (17) and home district office space in 
nonfederal buildings.(18) Another method of financing 
prevails over clerk-hire, which is paid directly by the House of 
Representatives to employees of the Member.(19) If an 
allowance may be withdrawn in cash as needed, as may the stationery 
allowance,(20) the allowance is taxable income to the 
Member.(1)
---------------------------------------------------------------------------
13. The allowances and allotments discussed in this section apply to 
        the Delegates from the District of Columbia, Guam, and the 
        Virgin Islands and to the Resident Commissioner from Puerto 
        Rico, unless otherwise indicated.
14. See 40 USC Sec. Sec. 177-184 (House office buildings) and 2 USC 
        Sec. 122 (home district office buildings).
15. See 2 USC Sec. 42c.
16. See 2 USC Sec. 112e. The Committee on House Administration may 
        prescribe the dollar value limit of mechanical office 
        equipment.
17. See 2 USC Sec. Sec. 46g and 46g-1.
18. See 2 USC Sec. 122 and Sec. 8.6, infra (power of Committee on House 
        Administration to adjust the home district office allotment).
19. See 2 USC Sec. 92.
20. See 2 USC Sec. 46b.
 1. The Revenue Act of 1951, 65 Stat. 452, Sec. 619(d), Oct. 20, 1951, 
        which became effective Jan. 3, 1953, rendered cash allowances 
        of Members accountable as taxable income.
---------------------------------------------------------------------------

    All office allowances are drawn from the contingent fund of the 
House.(2) Measures and regulations relating to such 
expenditures, and to the clerk-hire and office space of Members, are 
within the jurisdiction of the Committee

[[Page 732]]

on House Administration.(3) Under the former practice, 
increases in the allowances of Members were brought before the House 
for its approval by resolution.(4) In the 92d Congress, 
however, the Committee on House Administration was authorized by law to 
independently adjust the allowances of House Members.(5) Any 
payment from the contingent fund must have the prior sanction of the 
committee.(6)
---------------------------------------------------------------------------
 2. See 2 USC Sec. 57(b).
 3. See Sec. 8.1, infra.
            For regulations promulgated by the Committee on House 
        Administration, see Regulations of Travel and other Expenses of 
        Committees and Members, Committee on House Administration, 92d 
        Cong. (Mar. 1, 1971).
 4. See, for example, Sec. 8.8, infra.
 5. See Sec. 8.3, infra, including note as to later rescission of 
        authority.
 6. 2 USC Sec. 95.
---------------------------------------------------------------------------

    Each Member receives, by statute, an allotment of office space both 
at the Capitol and in the home district. An office in one of the House 
buildings is granted to the Member, based on a system of seniority and 
drawing lots.(7) In the home district, the Representative is 
entitled to three locations for office space, to be located in federal 
buildings if space is available.(8)
---------------------------------------------------------------------------
 7. See 40 USC Sec. Sec. 177-184. For information on the allotment of 
        space in House office buildings, see Ch. 4, supra.
 8. See Sec. 8.6, infra, for adjustments made in the 92d Congress to 
        the allowance for home district office space.
            The Committee on House Administration has jurisdiction over 
        all matters relating to office space for Members. House Rules 
        and Manual Sec. 693 (1973).
---------------------------------------------------------------------------

    The offices of Representatives in the House office buildings are 
furnished by the House. In addition, each Member is entitled to 
electric office equipment, to be credited against his allowance for 
that purpose.(9) Electric equipment remains the property of 
the Clerk of the House during the period of its use.(10)
---------------------------------------------------------------------------
 9. The Committee on House Administration has authority to sanction the 
        purchase of electric and mechanical office equipment for 
        Members, to prescribe the type of equipment, and to issue 
        regulations as to the use, maximum dollar limit, and 
        depreciation of such property. 2 USC Sec. 112e.
10. See 2 USC Sec. 122e(b).
---------------------------------------------------------------------------

    The most substantial allowance given to Members is the clerk-hire 
allowance, through which he staffs all his offices.(11) The 
max

[[Page 733]]

imum allowance has been adjusted upwards in recent 
Congresses.(12)
---------------------------------------------------------------------------
11. See 2 USC Sec. 332. For the disbursement of clerk-hire 
        appropriations, see 2 USC Sec. 92.
            The clerk-hire allowance for the Delegates from Guam and 
        the Virgin Islands is 60 percent of that of Members (see 48 USC 
        Sec. 1715). The Resident Commissioner from Puerto Rico and the 
        Delegate from the District of Columbia receive the same clerk-
        hire as Members.
12. See Sec. 8.4, infra.
            The maximum dollar limit for the clerk-hire allowance, 
        formerly based on a base rate pay system, has since been 
        changed to a gross annual rate pay system (see 2 USC Sec. 331).
---------------------------------------------------------------------------

    Clerical help may be dismissed by a Member without 
cause,(13) and under Rule XLIII clause 8, a Member may not 
retain anyone from his clerk-hire allowance who does not perform duties 
commensurate with his compensation. In the event a Member dies, his 
clerical help may remain on the House payroll until the time a 
successor is elected.(14)
---------------------------------------------------------------------------
13. 2 USC Sec. 92.
14. See 2 USC Sec. 92b. Pending the election of a successor, such 
        clerks perform duties under the supervision of the Clerk of the 
        House.
---------------------------------------------------------------------------

    Each Member is allotted a certain number of official publications, 
such as the Congressional Record,(15) the House Rules and 
Manual,(16) and the United States Code.(17)
---------------------------------------------------------------------------
15. 44 USC Sec. 906.
16. See, for example, H. Res. 1170, 92d Cong. 2d Sess., Oct. 18, 1972 
        (printing and distribution of revised House Rules and Manual).
17. 2 USC Sec. 54.
            The Clerk of the House must distribute to Members copies of 
        the Journal, copies of requested documents printed by order of 
        the House, and lists of reports which federal departments must 
        make to Congress. Rule III clauses 2, 3, House Rules and Manual 
        Sec. Sec. 640, 641 (1973).
---------------------------------------------------------------------------

    Necessary supplies are furnished a Member's office pursuant to 
statute. Each Representative receives postage stamps up to a certain 
dollar limit,(18) and may draw upon a stationery 
account.(19) For communications purposes, each Member is 
entitled to a certain number of ``units'' for long distance telephone 
calls, telegrams, and cables.(20) Units are calculated on 
the number of minutes, for telephone communications, and on the number 
of words, for telegram and cable communications.(1)
---------------------------------------------------------------------------
18. See 2 USC Sec. 42c.
19. The stationery allowance, codified in 2 USC Sec. 46b, has been 
        adjusted by the Committee on House Administration (see 
        Sec. 8.7, infra).
            A Member or Delegate elected to serve a portion of a term 
        receives a prorated stationery allowance (see 2 USC Sec. 46b-
        2).
20. See 2 USC Sec. 46g. A Member or Delegate elected for a portion of a 
        term receives a proportional amount of units.
 1. Each Member receives a quarterly allowance in reimbursement for 
        telephone service incurred outside the District of Columbia 
        (see 2 USC Sec. 46g-1). The Delegate from the District of 
        Columbia is not entitled to that allowance.

---------------------------------------------------------------------------

[[Page 734]]

    Various office services are performed by officers and employees of 
the House. Members may have documents folded or prepared for bulk 
mailing by the House Folding Room. The Clerk of the House maintains 
radio and television studios for Members to make transcriptions and 
films. The Government Printing Office binds documents for House 
Members. The stationery room prints, without charge, official 
stationery for Members.
    Advisory assistance on office operation is available from the House 
Office of Placement and Office Management.(2)
---------------------------------------------------------------------------
 2. See 2 USC Sec. 416.
---------------------------------------------------------------------------

                            Cross References
Allowances and supplies of officers, officials, and employees, see Ch. 
    6, supra.
Distribution of official publications, see Ch. 5, supra.
House facilities in general, see Ch. 4, 
    supra.                          -------------------

Jurisdiction of Committee on House Administration

Sec. 8.1 The Committee on House Administration has jurisdiction over 
    all measures relating to allowances and clerk-hire for Members, 
    office space, and appropriations and payments from the contingent 
    fund of the House.

    The Committee on House Administration, created by the Legislative 
Reorganization Act of 1946,(3) has jurisdiction under the 
House rules,(4) over employment of persons by the House, 
including clerks for Members, assignment of office space, and 
appropriations and payments from the contingent fund for allowances of 
Members. Any payments from the contingent fund must have the sanction 
of the Committee on House Administration.(5) The committee 
regulates the purchase and use of electric office equipment for 
Members.(6)
---------------------------------------------------------------------------
 3. 60 Stat. 812, Jan. 2, 1947.
 4. House Rules and Manual Sec. 693 (1973).
 5. 2 USC Sec. 95.
            The committee may report at any time on all matters of 
        expenditure from the contingent fund. See 99 Cong. Rec 10360, 
        83d Cong. 1st Sess., July 29, 1953; 100 Cong. Rec. 2282, 83d 
        Cong. 2d Sess., Feb. 25, 1954.
 6. 2 USC Sec. 112e.
---------------------------------------------------------------------------

    In the 92d Congress, the committee was given plenary powers to 
periodically review and adjust the allowances of Members, without the 
requirement that the House consider and pass individual resolutions on 
the subject of allowances.(7)
---------------------------------------------------------------------------
 7. See Sec. 8.3, infra.
---------------------------------------------------------------------------

Sec. 8.2 The Committee on House Administration announced a

[[Page 735]]

    policy to discourage the temporary employment, by Members and by 
    committees, of personnel for periods of less than a month.

    On Oct. 19, 1966,(8) Wayne L. Hays, of Ohio, the 
Chairman of the Subcommittee on Accounts of the Committee on House 
Administration announced as follows:
---------------------------------------------------------------------------
 8. 112 Cong. Rec. 27653, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. Hays: . . . Today the House Committee on Administration 
    passed unanimously a motion ordering and directing the chairman to 
    notify all Members that, as of the 15th of November, any employee 
    put on a Member's payroll, or a committee payroll, shall not be put 
    on for a period of less than 1 month, except that if the person put 
    on does not work out, and they desire to terminate his employment 
    in less than a month, he may not reappear on the Member's payroll 
    for a period of 6 months.

Adjustments of Allowances

Sec. 8.3 The Committee on House Administration became authorized by law 
    in the 92d Congress to periodically review and adjust the office 
    and supplies allowances of Members.

    On July 21, 1971, the House agreed to House Resolution 
457,(9) later enacted into permanent law,(10) 
which empowered the Committee on House Administration to periodically 
review and adjust the allowances of Members of the House without 
requiring any action by the House. The resolution covered the following 
allowances: clerk-hire; postage stamps; stationery; telecommunications; 
official office space and official expenses in the district; official 
telephone service in the district; travel and mileage.
---------------------------------------------------------------------------
 9. 117 Cong. Rec. 26451, 92d Cong. 1st Sess. But see 2 USC Sec. 57a 
        (authority substantially rescinded).
10. 2 USC Sec. 57, enacted by Pub. L. No. 92-184, Ch. 4, 85 Stat. 636, 
        Dec. 15, 1971.
---------------------------------------------------------------------------

    During debate on the resolution, it was stated by Mr. Frank 
Thompson, Jr., of New Jersey, a member of the committee, that any such 
action taken by the committee would be submitted to the House and 
printed in the Congressional Record on the day following a 
decision.(11)
---------------------------------------------------------------------------
11. 117 Cong. Rec. 26446, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    The purpose of the resolution, as stated by Mr. Thompson, was to 
``eliminate the need for coming to the floor a number of times each 
session with privileged resolutions on . . . routine allowances.'' 
(12)
---------------------------------------------------------------------------
12. Id. at p. 26445
---------------------------------------------------------------------------

    The resolution, called up as privileged by the Committee on

[[Page 736]]

House Administration, read as follows:

        Resolved, That (a) until otherwise provided by law, the 
    Committee on House Administration may, as the committee considers 
    appropriate, fix and adjust from time to time, by order of the 
    committee, the amounts of allowances (including the terms, 
    conditions, and other provisions pertaining to those allowances) 
    within the following categories:
        (1) for Members of the House of Representatives, the Resident 
    Commissioner from Puerto Rico, and the Delegate from the District 
    of Columbia--allowances for clerk hire, postage stamps, stationery, 
    telephone and telegraph and other communications, official office 
    space and official office expenses in the congressional district 
    represented (including as applicable, a State, the Commonwealth of 
    Puerto Rico, and the District of Columbia), official telephone 
    services in the congressional district represented, and travel and 
    mileage to and from the congressional district represented; and
        (2) for the standing committees, the Speaker, the majority and 
    minority leaders, the majority and minority whips, the Clerk, the 
    Sergeant at Arms, the Doorkeeper, and the Postmaster of the House 
    of Representatives--allowances for postage stamps, stationery, and 
    telephone and telegraph and other communications.
        (b) The contingent fund of the House of Representatives is made 
    available to carry out the purposes of this resolution.

Clerk-hire Allowance

Sec. 8.4 The Committee on House Administration adjusted upwards the 
    clerk-hire allowance of Members in the 92d and 93d Congresses.

    On Feb. 29, 1972,(13) Frank Thompson, Jr., of New 
Jersey, the Chairman of the Subcommittee on Accounts, Committee on 
House Administration, inserted in the Record an order equalizing the 
number of clerks and clerk-hire allowance for Members:
---------------------------------------------------------------------------
13. 118 Cong. Rec. 6122, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Order No. 3 equalizes the number of clerks and the amount of 
    clerk hire allowance to all Members of the House of 
    Representatives, the Resident Commissioner from Puerto Rico, and 
    the Delegate from the District of Columbia. The former method of 
    allocating this allowance--based on the population of a Member's 
    district--has become obsolete under the new redistricting plans 
    being adopted throughout the United States. Under these plans, 
    congressional districts will be of a more uniform size.
        Order No. 3 follows:

            Resolved, That effective March 1, 1972, until otherwise 
        provided by order of the Committee on House Administration, 
        each Member of the House of Representatives, the Resident 
        Commissioner from Puerto Rico, and the Delegate from the 
        District of Columbia shall be entitled to an annual clerk hire 
        allowance of $157,092 for not to exceed 16 clerks. There shall 
        be paid out of the contingent fund of the House of 
        Representatives such sums as may be necessary to carry out this 
        order until otherwise provided by law.

[[Page 737]]

    The Committee on House Administration had ordered the adjustment 
pursuant to the authority granted to the committee by the 
House.(14)
---------------------------------------------------------------------------
14. See Sec. 8.3, supra.
            The former base rate pay system on which clerk-hire was 
        calculated was converted to a gross per annum salary system by 
        the Legislative Reorganization Act of 1970, Pub. L. No. 91-510, 
        84 Stat. 1140, Oct. 26, 1970, codified in 2 USC 331.
---------------------------------------------------------------------------

    On Apr. 18, 1973, Mr. Thompson inserted in the Record two orders 
further affecting the clerk-hire allowance of Members: (15)
---------------------------------------------------------------------------
15. 119 Cong. Rec. 13074, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

                             Committee Order No. 5

        Resolved, That effective May 1, 1973, until otherwise provided 
    by order of the Committee on House Administration, upon written 
    request to the Committee on House Administration, a Member, the 
    Resident Commissioner from Puerto Rico, or a Delegate to the House 
    of Representatives may employ in lieu of 1 of the 16 clerks allowed 
    under his clerk hire allowance, a research assistant at such salary 
    as the Member may designate. The Member's annual clerk hire 
    allowance will then be increased at the rate of $20,000.
        There shall be paid out of the contingent fund of the House of 
    Representatives such sums as may be necessary to carry out this 
    order until otherwise provided by law.

                             Committee Order No. 6

        Resolved, That effective May 1, 1973, until otherwise provided 
    by order of the Committee on House Administration, upon written 
    request to the Committee on House Administration, a Member, the 
    Resident Commissioner from Puerto Rico or a Delegate to the House 
    of Representatives may allocate up to $250 a month of any unused 
    portion of his clerk hire allowance for the leasing of equipment 
    necessary for the conduct of his office.
        There shall be paid out of the contingent fund of the House of 
    Representatives such sums as may be necessary to carry out this 
    order until otherwise provided by law.(16)
---------------------------------------------------------------------------
16. Pursuant to H. Res. 420, 93d Cong. 1st Sess., Sept. 18, 1973, each 
        Member may also employ a ``Lyndon Baines Johnson Congressional 
        Intern,'' for a maximum of two months, at not to exceed $500 
        per month.
---------------------------------------------------------------------------

Sec. 8.5 A resolution providing a minimum gross annual salary for all 
    employees paid from clerk-hire allowances was not called up as 
    privileged, since it did not involve the contingent fund but a 
    separate clerk-hire appropriation.

    On Feb. 3, 1971, Wayne L. Hays, of Ohio, Chairman of the Committee 
on House Administration, called up by unanimous consent a resolution 
providing for a minimum gross annual salary for all clerk-hire 
employees.(17) The resolution was considered by

[[Page 738]]

unanimous consent, since such a resolution, calling for expenditure not 
from the contingent fund but from the separate clerk-hire 
appropriation, is not privileged under Rule XI clause 22:
---------------------------------------------------------------------------
17. 117 Cong. Rec. 1517, 1518, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

                                  H. Res. 189

        Resolved, That, until otherwise provided by law and 
    notwithstanding any other authority to the contrary, effective at 
    the beginning of the first pay period commencing on or after the 
    date of adoption of this resolution no person shall be paid from 
    the clerk hire allowance of any Member of the House of 
    Representatives, the Resident Commissioner from Puerto Rico, or the 
    Delegate from the District of Columbia at a per annum gross rate of 
    less than $1,200.

Home Office Allowance

Sec. 8.6 The Committee on House Administration modified the home 
    district office space allowance of Members in the 92d Congress.

    On Aug. 4, 1971,(18) the Chairman of the Committee on 
House Administration inserted in the Record an order by that committee 
adjusting the allowance of Members for home district office space:
---------------------------------------------------------------------------
18. 117 Cong. Rec. 29526, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        (Mr. Hays asked and was given permission to extend his remarks 
    at this point in the Record and to include extraneous matter.)
        Mr. [Wayne L.] Hays [of Ohio]: Mr. Speaker, House Resolution 
    457, adopted by the House of Representatives on July 21, 1971, 
    provided the Committee on House Administration the authority to fix 
    and adjust from time to time various allowances by order of the 
    committee. During House debate on House Resolution 457, the Members 
    were assured that any order adopted by the committee under the 
    authority of the resolution would be published in the Congressional 
    Record in the first issue following the committee action. Pursuant 
    to that commitment, the following order of the Committee on House 
    Administration is submitted for printing in the Congressional 
    Record. After careful consideration, the order was approved 
    unanimously by the Subcommittee on Accounts on July 29, 1971, and 
    adopted unanimously by the Committee on House Administration August 
    4, 1971.

             To Adjust the Allowance for Rental of District Offices

            Resolved, That effective August 1, 1971, until otherwise 
        provided by order of the Committee on House Administration, 
        each Member of the House of Representatives shall be entitled 
        to office space suitable for his use in the district he 
        represents at not more than three places designated by him in 
        such district. The Sergeant at Arms shall secure office space 
        satisfactory to the Member in post offices or Federal buildings 
        at not more than two locations if such space is available. 
        Office space to which a Member is entitled under this 
        resolution which is not secured by the Sergeant at Arms may be 
        secured by the Member, and the Clerk shall approve for payment 
        from the

[[Page 739]]

        contingent fund of the House of Representatives vouchers 
        covering bona fide statements of amounts due for such office 
        space not exceeding a total allowance to each Member of $200 
        per month; but if a Member certifies to the Committee on House 
        Administration that he is unable to obtain suitable space in 
        his district for $200 per month due to high rental rates or 
        other factors, the Committee on House Administration may, as 
        the Committee considers appropriate, direct the Clerk to 
        approve for payment from the contingent fund of the House of 
        Representatives vouchers covering bona fide statements of 
        amounts due for suitable office space not exceeding a total 
        allowance to each Member of $350 per month. No Member shall be 
        entitled to have more than two district offices outfitted with 
        office equipment, carpeting and draperies at the expense of the 
        General Services Administration.
            As used in this resolution the term ``Member'' means any 
        Member of the House of Representatives, the Resident 
        Commissioner of Puerto Rico and the Delegate of the District of 
        Columbia.(19)
---------------------------------------------------------------------------
19. For the authority of the Committee on House Administration to 
        adjust such allowances, see Sec. 8.3, supra. For previous 
        office space allowed under the United States Code, see 2 USC 
        Sec. 122.
---------------------------------------------------------------------------

    Another adjustment affecting the allowance was announced on Feb. 
29, 1972: (20)
---------------------------------------------------------------------------
20. 118 Cong. Rec. 6122, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Frank] Thompson [Jr.] of New Jersey: Mr. Speaker, House 
    Resolution 457, adopted by the House of Representatives on July 21, 
    1971, provided the Committee on House Administration the authority 
    to fix and adjust from time to time various allowances by order of 
    the committee. Pursuant to this authority, the committee has 
    revised Order No. 1 and issued Order No. 3.
        Order No. 1, revised, increases the number of allowable 
    district offices in Federal office buildings from two to three. 
    Some Members, because of the physical size of their districts 
    require additional offices to adequately serve their constituents. 
    This order gives those Members the authority to establish an 
    additional office in a Federal building if such space is available.
        Order No. 1, revised, follows:

            Resolved, That effective January 25, 1972, each Member of 
        the House of Representatives shall be entitled to office space 
        suitable for his use in the district he represents at such 
        places designated by him in such district. The Sergeant at Arms 
        shall secure office space satisfactory to the Member in post 
        offices or Federal buildings at not more than three (3) 
        locations if such space is available. Office space to which a 
        Member is entitled under this resolution which is not secured 
        by the Sergeant at Arms may be secured by the Member, and the 
        Clerk shall approve for payment from the contingent fund of the 
        House of Representatives vouchers covering bona fide statements 
        of amounts due for office space not exceeding a total allowance 
        to each Member of $200 per month; but if a Member certifies to 
        the Committee on House Administration that he is unable to 
        obtain suitable space in his district for $200 per month due to 
        high rental rates or other factors, the Committee on House 
        Administration, may as the committee considers appropriate, 
        direct the Clerk to approve for payment from the contingent 
        fund of the House of Rep

[[Page 740]]

        resentatives vouchers covering bona fide statements of amounts 
        due for suitable office space not exceeding a total allowance 
        to each Member of $350 per month. Members shall be entitled to 
        have no more than three (3) district offices outfitted with 
        office equipment, carpeting, and draperies at the expense of 
        the General Services Administration.
            As used in this resolution the term ``Member'' means any 
        Member of the House of Representatives, the Resident 
        Commissioner of Puerto Rico, and the Delegate of the District 
        of Columbia.

Stationery Allowance

Sec. 8.7 The Committee on House Administration increased the stationery 
    allowance of Members in the 92d Congress.

    On Oct. 5, 1972,(1) the Committee on House 
Administration increased the stationery allowance of Members by Order 
No. 4, submitted pursuant to the authority granted the committee to 
adjust allowances:
---------------------------------------------------------------------------
 1. 118 Cong. Rec. 34177, 92d Cong. 2d Sess.
---------------------------------------------------------------------------
    Committee on House Administration: Order No. 4--To Adjust the 
        Allowance for Stationery for Representatives, Delegates, and 
        Resident Commissioner

        Resolved, That effective January 3, 1973, until otherwise 
    provided by order of the Committee on House Administration; the 
    allowance for stationery for each Member of the House of 
    Representatives, Delegates, and Resident Commissioner shall be 
    $4,250 per regular session.(2)
---------------------------------------------------------------------------
 2. For the prior allowance, see 2 USC Sec. 46b.
---------------------------------------------------------------------------

Contingent Fund Appropriations as Privileged

Sec. 8.8 Resolutions which provided payment out of the contingent fund 
    for additional office allowances of Members were called up as 
    privileged.(3)
---------------------------------------------------------------------------
 3. The power granted to the Committee on House Administration in the 
        92d Congress to independently adjust allowances had made 
        unnecessary the practice of offering privileged resolutions for 
        payment from the contingent fund of allowances (see Sec. 8.3, 
        supra).
---------------------------------------------------------------------------

    On May 26, 1966, a resolution from the Committee on House 
Administration providing payment from the contingent fund of sums to 
increase the basic clerk-hire allowance on each Member and the Resident 
Commissioner was called up as privileged: (4)
---------------------------------------------------------------------------
 4. 112 Cong. Rec. 11654, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Samuel N.] Friedel [of Maryland]: Mr. Speaker, by 
    direction of the Committee on House Administration, I offer a 
    privileged resolution (H. Res. 855) and ask for its immediate 
    consideration.
        The Clerk read the resolution, as follows:

[[Page 741]]

                                  H. Res. 855

            Resolved, That, effective on the first day of the first 
        month which begins after the date of adoption of this 
        resolution, there shall be paid out of the contingent fund of 
        the House, until otherwise provided by law, such sums as may be 
        necessary to increase the basic clerk hire allowance of each 
        Member and the Resident Commissioner from Puerto Rico by an 
        additional $7,500 per annum, and each such Member and Resident 
        Commissioner shall be entitled to one clerk in addition to 
        those to which he is otherwise entitled.

        With the following committee amendment:

            Line 7, strike out ``$7,500'' and insert ``$7,000''.

    On Sept. 27, 1951,(5) the House considered a resolution 
called up by the Committee on House Administration:
---------------------------------------------------------------------------
 5. 97 Cong. Rec. 12289, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Thomas B.] Stanley [of Virginia]: Mr. Speaker, by 
    direction of the Committee on House Administration I offer a 
    privileged resolution (H. Res. 318) with amendments, and ask for 
    its immediate consideration.
        The Clerk read as follows:

            Resolved, That upon the request of any Member, officer, or 
        committee of the House of Representatives and with the approval 
        of the Committee on House Administration, the Clerk of the 
        House of Representatives is authorized and directed to purchase 
        electric office equipment for the use of such Member, officer, 
        or committee. The cost of such equipment shall be paid from the 
        contingent fund of the House of Representatives.
            Sec. 2. The Committee on House Administration shall 
        prescribe such standards and regulations (including regulations 
        establishing the types and maximum amount of electric office 
        equipment which may be furnished to any Member, officer, or 
        committee) as may be necessary to carry out the provisions of 
        this resolution.
            Sec. 3. Electric office equipment furnished under this 
        resolution shall be registered in the office of the Clerk of 
        the House of Representatives, and shall remain the property of 
        the House of Representatives.
            Sec. 4. For the purposes of this resolution, the term 
        ``Member'' includes the Representatives in Congress, the 
        Delegates from the Territories of Alaska and Hawaii, and the 
        Resident Commissioner from Puerto Rico. . . .

        Mr. [Karl M.] LeCompte [of Iowa]: Mr. Speaker, a parliamentary 
    inquiry.
        The Speaker: (6) The gentleman will state it.
---------------------------------------------------------------------------
 6. Sam Rayburn (Tex.).
---------------------------------------------------------------------------

        Mr. LeCompte: Is this a privileged resolution?
        The Speaker: The Chair would hold that this is a privileged 
    resolution because the expenditure is out of the contingent fund of 
    the House.(7)
---------------------------------------------------------------------------
 7. See also 116 Cong. Rec. 39448, 39449, 91st Cong. 2d Sess., Dec. 2, 
        1970 (resolution for additional stationery allowance from 
        contingent fund and resolution for increased telephone and 
        telegraph allowance from contingent fund); 111 Cong. Rec. 
        13799, 89th Cong. 1st Sess., June 16, 1965 (resolution 
        authorizing employment by Members of student congressional 
        interns, to be paid from contingent fund).

---------------------------------------------------------------------------

[[Page 742]]

Legislation Amending Allowances

Sec. 8.9 A joint resolution to amend existing law by providing an 
    increase in the number of electric typewriters furnished to each 
    Member, to be paid for from the contingent fund, is not called up 
    as privileged.(8)
---------------------------------------------------------------------------
 8. In the 92d Congress, the Committee on House Administration was 
        given independent power to adjust allowances, thereby obviating 
        the necessity of offering resolutions to increase allowances 
        (see Sec. 8.3, supra).
---------------------------------------------------------------------------

    On Sept. 15, 1965,(9) a joint resolution reported from 
the Committee on House Administration, increasing the number of 
electric typewriters to be furnished to Members by the Clerk of the 
House, and amending a prior joint resolution on the same subject, was 
not called up as privileged, since it amended existing law.
---------------------------------------------------------------------------
 9. 111 Cong. Rec. 23985, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 8.10 Amendments to increase the clerk-hire allowance and to permit 
    Members to adjust clerk-hire are legislation and not in order on 
    pending appropriations bills.

    On Dec. 6, 1944,(10) Chairman Herbert C. Bonner, of 
North Carolina, ruled that an amendment fixing new rates of clerk-hire 
for Members and new rates of salaries for committee employees, and 
allowing Members to readjust those salaries, was legislation and was 
not in order on a pending appropriation bill.
---------------------------------------------------------------------------
10. 90 Cong. Rec. 8937-39, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

    On July 1, 1955,(11) Chairman William M. Colmer, of 
Mississippi, held an amendment increasing the basic rate of allowance 
for clerk-hire to be legislation and not in order on an appropriations 
bill.
---------------------------------------------------------------------------
11. 101 Cong. Rec. 9815, 9816, 84th Cong. 1st Sess.

---------------------------------------------------------------------------

[[Page 743]]



 
                               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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
19. See 6 Cannon's Precedents Sec. Sec. 58, 59; 1 Hinds' Precedents 
        Sec. Sec. 323, 326, 450, 463, 469.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

                            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)
---------------------------------------------------------------------------
12. 113 Cong. Rec. 14, 90th Cong. 1st Sess. For the Senate practice, 
        see Sec. Sec. 9.5, 9.6, infra.
---------------------------------------------------------------------------

        The Speaker: (13) According to the precedent, the 
    Chair will swear in all Members of the House at this time.
---------------------------------------------------------------------------
13. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
14. 77 Cong. Rec. 239, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
18. 113 Cong. Rec. 14-26, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
19. 113 Cong. Rec. 4997, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

        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.

---------------------------------------------------------------------------

[[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.

---------------------------------------------------------------------------

[[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.




 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 10. Age, Citizenship, and Inhabitancy

    The Constitution requires that a Representative be at least 25 
years old, have a period of citizenship of at least seven years, and be 
an inhabitant of his state at the time of election.(19) 
Those three qualifications are unalterable by either the state 
legislature

[[Page 757]]

or by Congress itself, except by way of constitutional 
amendment.(20)
---------------------------------------------------------------------------
19. Art. I, Sec. 2, clause 2. These requirements are the express 
        ``standing'' qualifications for a Representative, although 
        there are other prerequisites in the nature of qualifications 
        and disqualifications (see Sec. 9, supra).
20. See Powell v McCormack, 395 U.S. 486 (1969) and Burton v United 
        States, 202 U.S. 344 (1906). Cf. Bond v Floyd, 385 U.S. 116 
        (1966).
            The individual states cannot fashion more restrictive 
        inhabitancy requirements, such as residency in the 
        congressional district sought to be represented. 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).
---------------------------------------------------------------------------

    The Constitution only sets a minimum age for 
membership.(1) No mandatory retirement age may be 
imposed,(2) although such proposals have been 
suggested.(3)
---------------------------------------------------------------------------
 1. For a commentary on the rationale for a minimum age requirement, 
        see Story, Commentaries on the Constitution of the United 
        States, Sec. 616, Da Capo Press (N.Y. repub. 1970).
            Mr. John Y. Brown (Ky.) did not take the oath in the House 
        until the second session of the 36th Congress, because he did 
        not meet the age qualification until that time (see 1 Hinds' 
        Precedents Sec. 418 and Biographical Directory of the American 
        Congress, S. Doc. No. 8, 92d Cong. 1st Sess. p. 650 [1971]). 
        Even more unique was the case of Mr. William C. Claiborne 
        (Tenn.), who evidently took the oath with the 5th and 6th 
        Congresses while, respectively, only 22 and 24 years old (see 
        Biographical Directory of the American Congress, S. Doc. No. 8, 
        92d Cong. 1st Sess. p. 739 [1971]).
 2. See 5 USC Sec. 8335 (no mandatory retirement age for Congressmen).
 3. A mandatory retirement age would require either exclusion or 
        expulsion for a disqualification not mentioned in the 
        Constitution. Compare Powell v McCormack, 395 U.S. 486 (1969) 
        and Burton v U.S., 202 U.S. 344 (1906).
---------------------------------------------------------------------------

    If a Member-elect is not of the required age, his name will not be 
entered on the roll of the House and he may not take the oath of office 
until he reaches the age of 25.(4) Likewise, the citizenship 
requirement of seven years need not be met until the time that a 
Member-elect presents himself to take the oath. The qualification of 
state inhabitancy must be met, however, at the time of election. That 
interpretation of article I was established in the 73d and 74th 
Congresses.(5) Both the Senate and the House concluded that 
a Member- or Senator-elect need not satisfy the age or citizenship 
requirements, or remove himself from an incompatible 
office,(6) until the time he presents himself to take the 
oath of office. The constitutional requirement of inhabitancy was 
construed to be applicable at the time of election.
---------------------------------------------------------------------------
 4. See 1 Hinds' Precedents Sec. 418.
 5. See Sec. Sec. 10.1, 10.2, infra.
 6. For a detailed discussion of the right of a Member-elect to hold an 
        incompatible office, and to receive compensation both for such 
        an office and for his congressional seat, before he has taken 
        the oath, see Sec. 13, infra.
---------------------------------------------------------------------------

    In order to attain citizenship and satisfy that qualification for

[[Page 758]]

membership, a Member-elect must either be born or naturalized in the 
United States.(7) And where a person has forfeited his 
rights as a citizen by reason of a felony conviction, his right to take 
a seat may be challenged.(8)
---------------------------------------------------------------------------
 7. See U.S. Const. amend. 14, Sec. 1, for the definition of 
        citizenship.
            Aliens cannot stand for election to Congress. Narisiades v 
        Shaughnessy, 342 U.S. 580, rehearing denied, 343 U.S. 936 
        (1952).
            Generally, citizenship is assumed, and failure to produce 
        proof thereof has not acted as an impediment to holding office. 
        See 1 Hinds' Precedents Sec. Sec. 420, 424; 6 Cannon's 
        Precedents Sec. 184.
 8. See Sec. 10.3, infra.
---------------------------------------------------------------------------

    The House generally presumes that a Member-elect has satisfied the 
requirements of the inhabitancy qualification.(9)
---------------------------------------------------------------------------
 9. For a catalog of House decisions on inhabitancy, based on specific 
        facts, see House Rules and Manual Sec. 11 (comment to U.S. 
        Const. art. I, Sec. 2, clause 2) (1973) and USCA notes to U.S. 
        Const. art. I, Sec. 2, clause 2.
            For a catalog of analogous Senate decisions on inhabitancy, 
        see House Rules and Manual Sec. 35 (comment to U.S. Const. art. 
        I, Sec. 3, clause 3) (1973).
---------------------------------------------------------------------------

                            Cross References
Age, citizenship, and inhabitancy qualifications of Delegates and 
    Resident Commissioners, see Sec. 3, supra.
Exclusiveness of the qualifications of age, citizenship, and 
    inhabitancy, see Sec. 9, supra.
Citizenship as affected by criminal conviction, see Sec. 11, infra.
Relationship of age, citizenship, and inhabitancy to credentials and 
    administration of oath, see Ch. 2, supra.

                         Collateral References
In general, see:
    House Rules and Manual Sec. Sec. 9-11 (comment to U.S. Const. art. 
        I, Sec. 2, clause 2) (1973).
    House Rules and Manual Sec. 35 (comment to U.S. Const. art. I, 
        Sec. 3, clause 3, qualifications of Senators) (1973).
Commentaries on the constitutional provisions, see:
    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. 616, Da Capo Press (N.Y. repub. 1970).
Time of meeting qualifications, see:
    S. Rept. No. 904, 74th Cong. 1st Sess., reprinted at 79 Cong. Rec. 
        9651-53, 74th Cong. 1st Sess., June 19, 
        1935.                          -------------------

Age and Citizenship

Sec. 10.1 A Member who has been a citizen for seven years when sworn, 
    although not when elected or upon commencement of his term, is 
    entitled to retain a seat, since the age and citizenship 
    qualifications of the Constitution need not be met until the time 
    membership actually commences.

[[Page 759]]

    In the 73d Congress, Representative-elect from Pennsylvania Henry 
Ellenbogen did not take the oath of office until the beginning of the 
second session on Jan. 3, 1934, although Congress had convened on Mar. 
4, 1933. Mr. Ellenbogen forestalled taking the oath since he had not 
attained the seven-year citizenship requirement of the Constitution 
either at the time of election, Nov. 8, 1932, or at the commencement of 
his term on Mar. 4.(10)
---------------------------------------------------------------------------
10. At the time of election, Mr. Ellenbogen had been a citizen for six 
        years and five months; at the commencement of the term he had 
        been a citizen for six years and eight and a half months. See 
        S. Rept. No. 904, 74th Cong. 1st Sess., reprinted in 79 Cong. 
        Rec. 9651-53, June 19, 1935.
---------------------------------------------------------------------------

    On Mar. 11, 1933,(11) the right of Mr. Ellenbogen to his 
seat was challenged by memorial based on his alleged failure to meet 
the citizenship qualification of the Constitution. His right to a seat 
was referred to committee, and the House adopted the following 
resolution on June 15, 1934:
---------------------------------------------------------------------------
11. 77 Cong. Rec. 239, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

        Resolved, That when Henry Ellenboen on January 3, 1934, took 
    the oath of office as a Representative from the 33d Congressional 
    district of the State of Pennsylvania, he was duly qualified to 
    take such oath; and it be further
        Resolved, That said Henry Ellenbogen was duly elected as a 
    Representative from the 33d district of Pennsylvania, and is 
    entitled to retain his seat.

Sec. 10.2 As a Member-elect or Senator-elect does not become a Member 
    of Congress until he is sworn, he need not meet the age and citizen 
    requirements of the Constitution until he appears to take the oath 
    of office (Senate decision).

    On Jan. 3, 1935,(12) the opening day of the 74th 
Congress, the oath was not administered to Rush D. Holt, Senator-elect 
from West Virginia, who was absent. In subsequent proceedings in the 
Senate, a contestant to Mr. Holt's seat asked that the election be 
voided on the ground that Mr. Holt was not yet 30 years old when 
elected and that he therefore did not meet the qualification stated in 
article I, section 3, clause 3, of the United States Constitution. The 
right of Mr. Holt to the seat was referred to the Committee on 
Privileges and Elections.
---------------------------------------------------------------------------
12. 79 Cong. Rec. 8, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

    On June 19, 1935,(13) the committee submitted its report 
to the Senate. The majority report pro

[[Page 760]]

posed that Mr. Holt be seated and sworn, since he met the age 
qualification when he ``presented himself to the Senate to take the 
oath and to assume the duties of the office.'' (14) The 
committee had concluded, based upon constitutional interpretation and 
upon precedents of the House and of the Senate, that the residency 
requirement of article I, section 3, clause 3, must be met at the time 
of election, but that the age and citizenship requirement need not be 
satisfied until an elected Member of Congress presents himself to take 
the oath.(15)
---------------------------------------------------------------------------
13. 79 Cong. Rec. 9651-53, 74th Cong. 1st Sess.
14. 79 Cong. Rec. 9653, 74th Cong. 1st Sess. The report, No. 904, was 
        reprinted in the Record, id. at pp. 9651-53.
15. The age, citizenship, and residency qualifications for Members of 
        the House, at U.S. Const. art. I, Sec. 2, clause 2, have the 
        same phrasing as the Senate requirements (the only difference 
        being the number of years for age and citizenship), and are 
        therefore subject to the same constitutional interpretation. 
        See 1 Hinds' Precedents Sec. 418; cf. 1 Hinds' Precedents 
        Sec. Sec. 429, 499.
---------------------------------------------------------------------------

    On June 21, 1935,(16) the Senate rejected a substitute 
amendment voiding Mr. Holt's election and adopted the original 
resolution, seating Mr. Holt and specifically referring to his 
satisfaction of the age requirement upon presenting himself to take the 
oath.
---------------------------------------------------------------------------
16. 79 Cong. Rec. 9841, 9842, 74th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 10.3 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 authorized the 
    Speaker to administer the oath but referred the question of final 
    right to an election committee.

    On Mar. 10, 1933,(17) 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.(18)
---------------------------------------------------------------------------
17. 77 Cong. Rec. 131-39, 73d Cong. 1st Sess.
18.  Id. at p. 134.
---------------------------------------------------------------------------

    Since, however, Mr. Shoemaker had been convicted of a federal 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: (19)
---------------------------------------------------------------------------
19. Id. at pp. 137-39.
---------------------------------------------------------------------------

        The Speaker: (20) The pending business is the 
    seating of Mr. Francis H.

[[Page 761]]

    Shoemaker, of Minnesota. Without objection, the Clerk will again 
    report the resolution offered by the gentleman from California [Mr. 
    Carter].
---------------------------------------------------------------------------
20. Henry T. Rainey (Ill.).
---------------------------------------------------------------------------

        The Clerk read as follows:
        Mr. Carter of California offers the following resolution:

            Whereas it is charged that Francis H. Shoemaker, a 
        Representative elect to the Seventy-third Congress from the 
        State of Minnesota, is ineligible to a seat in the House of 
        Representatives; and
            Whereas such charge is made through a Member of this House, 
        on his responsibility as such Member and on the basis, as he 
        asserts, of public records, statements, and papers evidencing 
        such ineligibility: Therefore
            Resolved, That the question of prima facie right of Francis 
        H. Shoemaker to be sworn in as Representative from the State of 
        Minnesota in the Seventy-third Congress, as well as of his 
        final right to a seat therein as such Representative, be 
        referred to the Committee on Elections No. 1, when elected, and 
        until such committee shall report upon and the House decide 
        such questions and right the said Francis H. Shoemaker shall 
        not be sworn in or be permitted to occupy a seat in the House, 
        and said committee shall have power to send for persons and 
        papers and examine witnesses on oath in relation to the subject 
        matter of this resolution. . . .

        The Clerk read as follows:
        Substitute resolution offered by Mr. Kvale:

            Resolved, That the Speaker is hereby authorized and 
        directed to administer the oath of office to the gentleman from 
        Minnesota, Mr. Francis H. Shoemaker;
            Resolved, That the question of the final right of Francis 
        H. Shoemaker to a seat in the Seventy-third Congress be 
        referred to the Committee on Elections No. 2, when elected, and 
        said committee shall have the power to send for persons and 
        papers and examine witnesses on oath in relation to the subject 
        matter of this resolution. . . .

        The Speaker: Under the unanimous-consent agreement, the 
    previous question is ordered.
        The question is on agreeing to the substitute resolution.
        The question was taken; and the Chair being in doubt, the House 
    divided and there were--ayes 230, noes 75.
        So the substitute resolution was agreed to.
        The Speaker: The question now recurs on the resolution as 
    amended by the substitute.
        Mr. [Paul J.] Kvale [of Minnesota]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Kvale: Mr. Speaker, at what stage would it be in order to 
    move to strike the preamble from the original resolution?
        The Speaker: Immediately after the vote on the resolution.
        The resolution, as amended, was agreed to.

        By unanimous consent, the preamble was stricken from the 
    resolution, and a motion to reconsider laid on the table.
        Hon. Francis H. Shoemaker, of the State of Minnesota, appeared 
    at the bar of the House and received the oath of office.

Inhabitancy

Sec. 10.4 In the 90th Congress, challenges to a seat were

[[Page 762]]

    based on the failure to satisfy the state inhabitancy qualification 
    but were not affirmed by the House, which excluded the Member-elect 
    on other grounds.

    On Mar. 1, 1967, the House excluded Adam C. Powell, Member-elect 
from New York, for prior misconduct as a Member of the 
House.(1) House Resolution No. 278, excluding Mr. 
Powell,(2) stated that Mr. Powell had met the constitutional 
qualifications of age, citizenship, and inhabitancy, although 
challenges had been made on Jan. 10, 1967, on Feb. 28, 1967, and on 
Mar. 1, 1967, to Mr. Powell's status as an inhabitant of the State of 
New York.
---------------------------------------------------------------------------
 1. See Sec. 9.3, supra, for a synopsis of the proceedings.
 2. See 113 Cong. Rec. 4997 (original resolution) and 5020 (adopted 
        amendment), 90th Cong. 1st Sess., Mar. 1, 1967.
---------------------------------------------------------------------------

    On Jan. 10, 1967, during debate on whether Mr. Powell should be 
seated, Mr. Samuel Stratton, of New York, arose to state:

        If a Representative-elect chooses to remain outside of his 
    State rather than comply with the duly constituted orders of the 
    courts of his own State, then I believe there is a very real 
    question of whether he is in fact still a resident of the State 
    which he purports to represent as the Constitution says he must 
    be.(3)
---------------------------------------------------------------------------
 3. 113 Cong. Rec. 20, 90th Cong. 1st Sess. Congress has decided that a 
        Member must meet the inhabitancy requirement at the time of the 
        election, but need not satisfy the age and citizenship 
        requirements until appearing to be sworn. See Sec. Sec. 10.1, 
        10.2, supra.
---------------------------------------------------------------------------

    On the same day, Mr. Theodore Kupferman, of New York, arose to 
state that he also doubted that Mr. Powell was a resident of New York, 
since he was absent during House proceedings on an issue important to 
the State of New York, and was in Bimini.(4)
---------------------------------------------------------------------------
 4. Id. at p. 21.
---------------------------------------------------------------------------

    On Feb. 28, 1967, shortly before the House considered Mr. Powell's 
right to a seat, Mr. Stratton stated that he intended to offer an 
amendment to the resolution granting Mr. Powell his seat, in order to 
demand that Mr. Powell subject himself to the New York State courts, to 
satisfy the inhabitancy requirement of the Constitution. Mr. Stratton 
quoted from a committee report of the 70th Congress:

        We think that a fair interpretation of the letter and the 
    spirit of this paragraph with respect to the word ``inhabitant'' is 
    that the framers intended that for a person to bring himself within 
    the scope of its meaning he must have and occupy a place of abode 
    within the particular State in which he claims inhabitancy, and 
    that he must have openly and avowedly by act and by word subjected 
    himself to the duties and responsibilities of a member of the body 
    politic of that particular State.(5)
---------------------------------------------------------------------------
 5. 113 Cong. Rec. 4772, 90th Cong. 1st Sess. The report cited by Mr. 
        Stratton was submitted in the case of James Beck (see 6 
        Cannon's Precedents Sec. 174), wherein the House found to be an 
        inhabitant of Pennsylvania a Member who occupied an apartment 
        in Pennsylvania one or more times each week, and exercised his 
        civic rights there, although owning summer homes and residences 
        in other states.

---------------------------------------------------------------------------

[[Page 763]]

    On Mar. 1, 1967, Mr. Fletcher Thompson, of Georgia, stated that he 
intended to offer an amendment stating that Mr. Powell was not entitled 
to a seat in the House since he had abandoned inhabitancy in New York 
prior to election.(6)
---------------------------------------------------------------------------
 6. 113 Cong. Rec. 4993, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    When the House excluded Mr. Powell, however, the resolution of 
exclusion admitted Mr. Powell's satisfaction of the inhabitancy 
qualification but excluded him on other grounds.(7)
---------------------------------------------------------------------------
 7. H. Jour. 313, 314, 90th Cong. 1st Sess., Mar. 1, 1967. For Speaker 
        John W. McCormack's responses to parliamentary inquiries 
        related to the meaning of the adopted resolution and preamble 
        in regards to the inhabitancy qualification, see 113 Cong. Rec. 
        5038, 90th Cong. 1st Sess., Mar. 1, 1967.
---------------------------------------------------------------------------



 
                               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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
13. See Sec. Sec. 11.2, 11.3, infra.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

                            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)
---------------------------------------------------------------------------
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.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 1. 93 Cong. Rec. 109, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 2. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 3. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 4. 88 Cong. Rec. 2077-80, 77th Cong. 2d Sess., Mar. 9, 1942.
---------------------------------------------------------------------------

    After determining that a two-thirds vote was necessary for 
expulsion,(5) the Senate failed to expel Senator 
Langer.(6)
---------------------------------------------------------------------------
 5.  88 Cong. Rec. 3064, 77th Cong. 2d Sess., Mar. 27, 1942.
 6. Id. at p. 3065.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 8. 77 Cong. Rec. 131-39, 73d Cong. 1st Sess.
 9. Id. at p. 134.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
10. Id. at pp. 137-39.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
11. 119 Cong. Rec. 36943, 36944, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

                                  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)
---------------------------------------------------------------------------
12. For a similar resolution reported in a preceding Congress but not 
        considered in the House, see H. Res. 933, 92d Cong.
---------------------------------------------------------------------------



                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 12. Loyalty

    Loyalty to the United States or to its government is not listed as 
one of the standing qualifications for membership in 
Congress.(13) The Supreme Court decided in 1969 that 
Congress could not add to the constitutional qualifications for 
Members, and could only adjudge the absence or lack of the standing 
qualifications of age, citizenship, and residency.(14) The 
Powell case did not specifically discuss, however, the constitutional 
provisions which are related to loyalty and which could be construed as 
qualifications for membership.
---------------------------------------------------------------------------
13. The congressional precedents on loyalty all arose prior to 1936 
        (see 1 Hinds' Precedents Sec. Sec. 449, 451, 457, 459, 620). 
        The last House debate on exclusion for disloyalty occurred in 
        1919 through 1921 (see 6 Cannon's Precedents Sec. Sec. 56-58).
14. Powell v McCormack, 395 U.S. 486 (1969).
            A state cannot require of a congressional candidate 
        declarations of loyalty, or affidavits averring lack of intent 
        to seek forcible overthrow of the government. Shubb v Simpson, 
        76 A.2d 332 (Md. 1950).
---------------------------------------------------------------------------

    First, the Constitution requires that every Member swear to an oath 
to support the Constitution.(15) If a Member-elect were 
afflicted with insanity he could probably not take a meaningful oath, a 
question which has arisen in the Senate but not in the 
House.(16)
---------------------------------------------------------------------------
15. U.S. Const. art. VI, Sec. 3. The form of the oath which is taken 
        appears at 5 USC Sec. 3331. For detailed information on the 
        evolution of the oath of office, see Ch. 2, supra.
16. See 1 Hinds' Precedents Sec. 221, where the Senate allowed a 
        Senator-elect to be sworn after satisfying itself that he had 
        the mental capacity to take the oath.

---------------------------------------------------------------------------

[[Page 770]]

    The House has not reached the question whether an express disavowal 
of the oath to support the Constitution by a Member-elect would 
prohibit him from taking office. In a recent case the Supreme Court 
denied to state legislators the power to look behind the mere 
willingness of a legislator-elect to swear to uphold the Constitution, 
in order to test his alleged sincerity in taking the 
oath.(17) The court did however distinguish the facts before 
it from a hypothetical situation where a legislator might swear to an 
oath pro forma while declaring or manifesting his disagreement with or 
indifference to the oath being taken.(18)
---------------------------------------------------------------------------
17. Bond v Floyd, 385 U.S. 116 (1966). The state legislature had 
        attempted to exclude Mr. Bond because he had voiced objections 
        to certain national policies. The main argument proposed by the 
        Georgia state legislature for excluding him was that since the 
        taking of the oath was an enumerated qualification for office, 
        and since the legislature had the sole power to judge the 
        meeting of qualifications, the body had the power to look 
        beyond the plain words of the oath and the simple willingness 
        to take it, in order to adjudge the state of mind of the 
        legislator taking it.
18. Id. at p. 132.
---------------------------------------------------------------------------

    The 14th amendment to the Constitution imposes a further test of 
loyalty on Representatives, by prohibiting the taking of office by any 
person who has engaged in insurrection or given aid or comfort to the 
enemies of the United States after previously having taken the official 
oath to support the Constitution.(19) Early in this century, 
the House denied a seat to a Member-elect under the provisions of the 
14th amendment.(20)
---------------------------------------------------------------------------
19. U.S. Const. amend. 14, Sec. 3. Congress may, by a vote of two-
        thirds, remove such disability for any person. The disabilities 
        arising from Civil War activities were generally removed by the 
        Act of June 6, 1898, Ch. 389, 30 Stat. 432. For congressional 
        determination of the meaning of ``aid and comfort'' to enemies, 
        as used in the 14th amendment, see 6 Cannon's Precedents 
        Sec. Sec. 56-58.
20. See 6 Cannon's Precedents Sec. Sec. 56-58. When the Member-elect in 
        that case, Mr. Victor L. Berger (Wisc.) was excluded, his 
        conviction for espionage was presently being appealed in the 
        federal courts. After the Supreme Court voided his conviction, 
        Berger et al. v U.S., 255 U.S. 22 (1921), Mr. Berger was 
        elected to succeeding Congresses.
---------------------------------------------------------------------------

    In the period immediately following the Civil War, the Congress 
added a statutory qualification to those enumerated in the Constitution 
by requiring a loyalty ``test oath'' of Members-elect.(1) A 
number of persons were

[[Page 771]]

denied seats in the House by virtue of that provision.(2)
---------------------------------------------------------------------------
 1. Act of July 2, 1862, 20 Stat. 502, termed the ``iron-clad'' or 
        ``test'' oath because of its exhaustive definition of 
        disloyalty. See the extensive discussion at 1 Hinds' Precedents 
        Sec. 449 on whether that oath was unconstitutional, the House 
        finding that it was not, despite a decision by the Supreme 
        Court that the oath was unconstitutional as applied to lawyers, 
        since it operated to perpetually exclude persons from a 
        profession in an ex post facto manner. See Ex parte Garland, 4 
        Wall. 333 (1866). The minority opposition in the House to the 
        1862 oath argued that the oath was unconstitutional for two 
        reasons: first, it was an ex post facto law, punishing 
        individuals, without a trial, for offenses committed before the 
        enactment; second, it purported to add qualifications to those 
        enumerated in the Constitution for Members.
 2. See 1 Hinds' Precedents Sec. Sec. 449, 451, 459, 620.
---------------------------------------------------------------------------

                            Cross References
Administration of the oath and challenges to the right to be sworn, see 
    Ch. 2, supra.
Administration of the oath to officers, officials, and employees, see 
    Ch. 6, supra.
Conduct, punishment, censure, and expulsion, see Ch. 12, infra.



 
                               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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------


    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)
---------------------------------------------------------------------------
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.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    Various federal statutes prohibit Members from holding certain 
enumerated offices inconsistent with membership (17) and 
from contracting with the government.(17)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

                            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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
10. 91 Cong. Rec. 12286, 79th Cong. 1st Sess.
11. 91 Cong. Rec. 12281, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
12. 109 Cong Rec. 18583, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
14. 81 Cong. Rec. 8732, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
15. Id. at pp. 8951-58.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
16. Id. at p. 8954.
17. Id. at p. 8961.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
18. 81 Cong. Rec. 9077, 75th Cong. 1st Sess. The debate extends at 81 
        Cong. Rec. from 9068 to 9103.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
19. Id. at pp. 9082-88.
---------------------------------------------------------------------------

    The Senate rejected the constitutional challenge to Senator Black's 
nomination, and confirmed his appointment.(20)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 2. 115 Cong. Rec. 4734, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 4. 115 Cong. Rec. 1294, 91st Cong. 1st Sess.
 5. 115 Cong. Rec. 1571, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 6. Pub. L. No. 90-206, 81 Stat. 642, codified as 2 USC Sec. Sec. 351-
        361.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 7. See note following 2 USCA Sec. 358. The proposed increases were 
        submitted to Congress on Jan. 15, 1969.

---------------------------------------------------------------------------

[[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)
---------------------------------------------------------------------------
 8. See 42 Op. Atty Gen. 36.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 9. 119 Cong. Rec. 40266, 93d Cong. 1st Sess., Dec. 7, 1973.
---------------------------------------------------------------------------

    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.



 
                               CHAPTER 7
 
                              The Members
 
                C. QUALIFICATIONS AND DISQUALIFICATIONS
 
Sec. 14. --Military Service

    Early Congresses determined that active duty with the United States 
Armed Forces was incompatible with congressional 
membership.(10) On many occasions, the House has declared or 
assumed vacant the seats of Members who have accepted officers' 
commissions in branches of the

[[Page 781]]

armed forces.(11) The practice has not, however, been 
uniform, and on some occasions involving the military service of 
Members the House has taken no action.(12)
---------------------------------------------------------------------------
10. See 1 Hinds' Precedents Sec. Sec. 486-492, 494, 500, 504.
11. See, for example, 1 Hinds' Precedents Sec. Sec. 486, 488, 490.
12. 40 Op. Att'y Gen. 301 (1943). ``Under the practice which has long 
        prevailed, Members of Congress may enter the Armed Forces by 
        enlistment, commission, or otherwise but thereupon cease to be 
        Members of Congress provided the House or the Senate, as the 
        case may be, chooses to act.''
---------------------------------------------------------------------------

    During and immediately prior to World War II, the House permitted 
Members to hold officers' commissions, to attend training while the 
House was in session, and to be absent from House proceedings for 
military duties.(13) But when the President during the war 
took action to compel congressional Members to make an election between 
serving in the Congress and serving in the military,(14) 
some Members returned to the House and others resigned or otherwise 
left Congress in order to serve in the armed forces.(15) 
Congressional salary was not paid to those Members absent during World 
War II for military service.(16)
---------------------------------------------------------------------------
13. See Sec. Sec. 14.4, 14.5, infra.
14. See Sec. 14.3, infra.
15. See Sec. 14.6, infra.
16. See Sec. 14.7, infra.
            Subsequent to World War I, the House passed a resolution 
        authorizing the back-payment of salaries to Members who had 
        been absent for military service (see 6 Cannon's Precedents 
        Sec. 61).
---------------------------------------------------------------------------

    An unresolved issue relating to incompatible offices and military 
service is the status of Members of Congress who hold reserve 
commissions in branches of the armed forces. Congress has declined on 
several occasions to finally determine whether active service with the 
reserves is an incompatible office under the United 
States.(17) In 1965, however, the Department of Defense 
stripped all Members of Congress and some congressional employees of 
their active reserve status.(18)
---------------------------------------------------------------------------
17. See Sec. 14.1, infra, and 6 Cannon's Precedents Sec. Sec. 60-62.
18. See Sec. 14.2, infra.
            Where a federal court held that a Member of Congress could 
        not hold a commission in the armed forces reserve under art. I, 
        Sec. 6, clause 2, the Supreme Court reversed on grounds 
        relating to the plaintiff's lack of standing to maintain the 
        suit. Reservists' Committee to Stop the War v Laird, 323 F Supp 
        833 (1972), aff'd 595 F2d 1075 (1972), rev'd on other grounds 
        418 U.S. 208 
        (1974).                          -------------------
---------------------------------------------------------------------------

Service in Armed Forces Reserves

Sec. 14.1 A Senate resolution introduced in the 88th Con

[[Page 782]]

    gress, to effectuate an inquiry into the possible incompatibility 
    between serving simultaneously in the armed forces reserves and in 
    the Congress, was not acted upon by committee or by the full 
    Senate.

    On May 15, 1963, Senator Barry Goldwater, of Arizona, introduced 
Senate Resolution No. 142, ``to make inquiry whether the holding by a 
Member of the Senate of a Commission as a Reserve member of any of the 
armed forces is incompatible with his office as Senator''; the 
resolution was referred to the Committee on the 
Judiciary.(19) Senator Goldwater introduced the resolution 
in order to have the Congress finally settle an issue which had never 
been determined.(20)
---------------------------------------------------------------------------
19. 109 Cong. Rec. 8764, 88th Cong. 1st Sess.
20. See Senator Goldwater's explanation of the resolution and analysis 
        of historical developments at 109 Cong. Rec. 8715-18, 88th 
        Cong. 1st Sess., May 15, 1963.
            The resolution was amended on May 15 to include studying 
        the incompatibility of a Senator serving on the United Nations 
        delegation. 109 Cong. Rec. 8843.
---------------------------------------------------------------------------

    On July 24, 1963, Senator Goldwater arose to state that the 
Committee on the Judiciary had yet failed to take any action on the 
resolution.(1) He stated that since the committee was 
failing to act, he was independently investigating the issue, with the 
conclusion that reserve commissions were not incompatible offices. He 
reviewed the legislative history of an Act of July 1, 1930, which he 
said supported his view that service in the reserves was not 
incompatible with service as a Senator.
---------------------------------------------------------------------------
 1. 109 Cong. Rec. 13211, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 14.2 A Senator proposed and then withdrew an amendment in the 89th 
    Congress to block a Defense Department order which deactivated 
    Congressmen then serving in the active reserves.

    On Apr. 6, 1965, during Senate debate on a military procurement 
authorization bill, Senator Howard W. Cannon, of Nevada, offered an 
amendment to counteract a Department of Defense directive of Jan. 16, 
1965, No. 1200.7, which had ordered all Members of Congress out of the 
Active Reserve and into the Standby or Retired Reserve.(2)
---------------------------------------------------------------------------
 2. 111 Cong. Rec. 7097, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    Senator Cannon stated the reason for his amendment as follows:

        With reference to Members of the legislative branch who also 
    may be

[[Page 783]]

    members or former members of the Ready Reserve, their requirements 
    for military service should be the subject of a Presidential 
    determination, as they were in World War II. The premise underlying 
    the Defense Department order is in error; namely, that a Member of 
    the Senate or the House of Representatives . . . is unfit not only 
    to serve in the Ready Reserve, but also to decide for himself 
    whether he can best serve his country at a time of national crisis 
    as a legislator or as a member of the Armed Forces on active duty.

    Senator Cannon later withdrew his amendment, upon assurance his 
objection would be considered by the committee handling the 
bill.(3)
---------------------------------------------------------------------------
 3. Id. at p. 7101.
---------------------------------------------------------------------------

Action of Executive Branch

Sec. 14.3 During World War II, the President recalled to Congress 
    Members then serving in the armed forces, after the Department of 
    War and the Department of the Navy stated their opposition to such 
    simultaneous service.

    On June 1, 1942,(4) there were inserted in the Record 
letters written by Secretary of War, Henry I. Stimpson, and Secretary 
of the Navy, Frank Knox, addressed to the Speaker of the House, 
opposing the enlistment or commissioning of Members of Congress in the 
armed forces and stating that a Member of Congress could render greater 
services to the Nation by continuing to represent the people rather 
than by serving with the armed forces.
---------------------------------------------------------------------------
 4. 88 Cong. Rec. A-2015, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

    The letters stated that activation of Members who held reserve 
commissions would be discouraged, and applications for enlistment by 
Members would be disapproved.

    During 1942, the President began recalling to Congress those 
Members presently absent on active military service.(5)
---------------------------------------------------------------------------
 5. See, for example, the remarks of Mr. Albert L. Vreeland (N.J.) on 
        July 30, 1942, 88 Cong. Rec. A-2993, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

    In 1943, the Attorney General advised the President as follows:

        It would be a sound and reasonable policy for the Executive 
    Department to refrain from commissioning or otherwise utilizing the 
    services of Members of Congress in the armed forces, and the 
    Congress by exemptions in the Selective Training and Service Act of 
    1940 has recognized the soundness of this policy.(6)
---------------------------------------------------------------------------
 6. 40 Op. Att'y Gen. 301 (1943). The opinion stated that both the 
        House and the Senate had, on some occasions in the past, 
        determined that service with the armed forces was incompatible 
        with congressional membership.
            For the statutory draft deferment of Congressmen referred 
        to, see Selective Training and Service Act of 1940, 54 Stat. 
        885, Ch. 720, Sec. 5(c)(1).

---------------------------------------------------------------------------

[[Page 784]]

World War II Service

Sec. 14.4 During and immediately prior to World War II, Members were 
    allowed to hold officers' commissions and to attend military 
    training while the House was in session.

    On June 10, 1941,(7) the House granted a leave of 
absence to Mr. James G. Scrugham, of Nevada, presently a lieutenant 
colonel in the Officers Reserve Corps, to attend three weeks of 
military training.
---------------------------------------------------------------------------
 7. 87 Cong. Rec. 4991, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

    Similarly, on Oct. 23, 1941,(8) the House granted by 
unanimous consent indefinite leave of absence to Mr. Dave E. 
Satterfield, Jr., of Virginia, for temporary active duty as an officer 
in the Naval Reserve.
---------------------------------------------------------------------------
 8. 87 Cong. Rec. 8210, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 14.5 During World War II, no objections were voiced to the absence 
    of Members-elect and to the delay in their taking the oath because 
    of overseas duty with the armed forces.

    On Jan. 4, 1945,(9) an announcement was made that Mr. 
Henry J. Latham, of New York, would be delayed in taking the oath until 
the month of February, since he was presently a lieutenant in the Navy 
and on duty in the South Pacific. No objection was raised in the House 
to Mr. Latham's absence.
---------------------------------------------------------------------------
 9. 91 Cong. Rec. 34, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Mar. 7, 1945,(10) Mr. Albert A. Gore, of Tennessee, 
appeared to take the oath of office in the 79th Congress. He had been 
re-elected to the 79th Congress after resigning his seat in the 78th 
Congress in order to serve overseas with the armed forces.
---------------------------------------------------------------------------
10. 91 Cong. Rec. 1859, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 14.6 During World War II, after the executive branch had voiced 
    opposition to the simultaneous military service of Members of 
    Congress, some Members resigned their seats, or did not seek re-
    election, in order to serve with the armed forces.(11)
---------------------------------------------------------------------------
11. According to Senator Howard W. Cannon (Nev.) in remarks on Apr. 6, 
        1965, of the 20 Members of Congress who had gone on active duty 
        during World War II before the President determined they should 
        be recalled, 12 either resigned or otherwise left the House in 
        order to serve. 111 Cong. Rec. 7097, 89th Cong. 1st Sess.

---------------------------------------------------------------------------

[[Page 785]]

    During World War II, the Departments of the War and Navy stated 
their opposition to Members of Congress serving in the military, and 
the President began recalling to Congress Members who were commissioned 
or had enlisted.(12)
---------------------------------------------------------------------------
12. See Sec. 14.3, supra.
---------------------------------------------------------------------------

    Some Members who were then in the armed services, and some who 
wished to join, then resigned from the House or did not seek 
reelection, in order to serve with the armed forces.(13)
---------------------------------------------------------------------------
13. See 90 Cong. Rec. 8990, 78th Cong. 2d Sess., Dec. 7, 1944; 90 Cong. 
        Rec. 8450, 78th Cong. 2d Sess., Nov. 27, 1944; 90 Cong. Rec. 
        8201, 78th Cong. 2d Sess., Nov. 20, 1944; 89 Cong. Rec. 8163, 
        78th Cong. 1st Sess., Nov. 14, 1943; 89 Cong. Rec. 7779, 78th 
        Cong. 1st Sess., Sept. 23, 1943; and 88 Cong. Rec. 7051, 77th 
        Cong. 2d Sess., Sept. 7, 1942.
---------------------------------------------------------------------------

Sec. 14.7 During World War II, the Sergeant at Arms of the House did 
    not disburse compensation to those Members who were presently on 
    leaves of absence and serving in the military.

    In accordance with an opinion given him by the Comptroller General, 
Kenneth Romney, Sergeant at Arms of the House, did not pay 
congressional salary to those Members of the House who were during 
World War II on leaves of absence because of service in the Army and 
Navy.(14)
---------------------------------------------------------------------------
14. See H. Rept. No. 2037, from the Committee on House Accounts, to 
        accompany H. Res. 512, 79th Cong. 2d Sess.

---------------------------------------------------------------------------

[[Page 786]]



 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 15. Generally; Judicial Review


    The Constitution grants to Members of Congress two specific 
immunities, one from arrest in certain instances and one from being 
questioned in any other place for speech or debate.(15) 
Viewed in one form, they constitute legal defenses, to be pleaded in 
court, which act to prohibit or limit court actions or inquiries 
directed against Members of Congress.(16) Since the 
immunities act as procedural defenses, it has become the role of the 
courts, both state and federal, to define and clarify their application 
to ongoing cases and controversies. The courts have even stated on 
occasion that the scope and application of the immunities is not for 
Congress but for the judiciary to decide.(17)
---------------------------------------------------------------------------
15. U.S. Const. art. I, Sec. 6, clause 1.
16. Smith v Crown Publishers, 14 F.R.D. 514 (1953).
17. See Gravel v U.S., 408 U.S. 606, 624 and note 15 (1972).
---------------------------------------------------------------------------

    The immunities exist not only to protect individual legislators, 
but also to insure the independence and integrity of the legislative 
branch in relation to the executive and judicial 
branches.(18) The principle of separation of powers is so 
essential to the American constitutional framework that the general 
immunity of Congress, of its components, and of its actions from 
interference by the other branches of the government, may be said to 
exist independently of the express constitutional 
immunities.(19)
---------------------------------------------------------------------------
18. ``The immunities of the Speech or Debate Clause were not written in 
        the Constitution simply for the personal or private benefit of 
        Members of Congress, but to protect the integrity of the 
        legislative process by insuring the independence of individual 
        legislators.'' U.S. v Brewster, 408 U.S. 501, 507 (1972).
19. In Tenney v Brandhove, 341 U.S. 367 (1951), the Supreme Court 
        stated that the constitutional immunities for Members of 
        Congress were a reflection of political principles already 
        firmly established in the states. The Court concluded on the 
        basis of public policy and of common law legislative privilege 
        that state legislatures were protected from civil liability for 
        conducting investigations.
            See Methodist Federation for Social Action v Eastland, 141 
        F Supp 729 (D.D.C. 1956), wherein the court relied upon 
        separation of powers in refusing to enjoin the printing of a 
        committee report. The court stated that ``nothing in the 
        Constitution authorizes anyone to prevent the President of the 
        United States from publishing any statement. This is equally 
        true whether the statement is correct or not, whether it is 
        defamatory or not, and whether it is or is not made after a 
        fair hearing. Similarly, nothing in the Constitution authorizes 
        anyone to prevent the Supreme Court from publishing any 
        statement. We think it equally clear that nothing authorizes 
        anyone to prevent Congress from publishing any statement.'' In 
        McGovern v Martz, 182 F Supp 343 (D.D.C. 1960), the court 
        stated that ``the immunity [of speech and debate] was believed 
        to be so fundamental that express provisions are found in the 
        Constitution, although scholars have proposed that the 
        privilege exists independently of the constitutional 
        declaration as a necessary principle in free government.''
            See for a full discussion Reinstein and Silverglate, 
        Legislative Privilege and the Separation of Powers, 86 Harv. L. 
        Rev. 1113 (1973), in which the authors contend that the Speech 
        and Debate Clause must encompass all legitimate functions of a 
        legislature in a system which embraces the principle of 
        separation of powers. See also Comment, The Scope of Immunity 
        for Legislators and Their Employees, 70 Yale L. Jour. 366 
        (1967).

---------------------------------------------------------------------------

[[Page 787]]

    The specific immunities of Congressmen from arrest and for speech 
and debate are easily confused with various uses of the term 
``privilege''; that term generally refers to the immunity of 
governmental officials and agencies for statements and actions 
performed in the course of official duties. Not only the executive and 
judicial branches of the federal government, but also the state 
legislatures, have been recognized to hold some privilege from suit and 
inquiry in relation to official acts and duties.(20)
---------------------------------------------------------------------------
20. See Doe v McMillan, 412 U.S. 306 (1973) and Barr v Mateo, 360 U.S. 
        564 (1959) for the common law principle that public officials, 
        including Congressmen, judges, and administrative officials, 
        are immune from liability for damages for statements and 
        actions made in the course of their official duties.
            For the privilege of state legislators, see Tenney v 
        Brandhove, 341 U.S. 367 (1951); Eslnger v Thomas, 340 F Supp 
        886 (D.S.C. 1972); Blondes v State, 294 A.2d 661 (Ct. App. Md. 
        1972).
---------------------------------------------------------------------------

    Under the procedure of the House, the term ``question of 
privilege'' refers to matters raised on the floor, with a high 
procedural precedence, and divided into matters of personal privilege 
(affecting the rights, reputation, and conduct of individual Members in 
their representative capacity) and into matters of the privilege of the 
House (affecting the collective safety, dignity, and integrity of 
legislative proceedings).(1) Alleged violations of the 
specific constitutional immunities of Members comprise only a part of 
the many

[[Page 788]]

issues which are raised as questions of privilege in the House. 
Therefore, a distinction must be made between questions of privilege in 
general and the specific immunities of Members of 
Congress.(2)
---------------------------------------------------------------------------
 1. For definitions of questions of privilege and the manner of raising 
        them, see Rule IX, House Rules and Manual Sec. 661 (1973) and 
        Ch. 11, infra.
 2. Questions of privilege must be further distinguished from 
        privileged questions, which are certain questions and motions 
        which have precedence in the order of business under House 
        rules (see Ch. 11, infra).
---------------------------------------------------------------------------

    When an incident arises in relation to the immunities of Members, 
the incident may be brought before the House as a question of 
privilege,(3) whereupon the House may investigate the 
situation and may adopt a resolution stating the consensus of the House 
on whether immunities have been violated, and ordering such actions as 
the House or the individual Member(s) may take.(4)
---------------------------------------------------------------------------
 3. See Sec. Sec. 15.1, 15.3, infra.
 4. See Sec. Sec. 15.1, 15.2, infra.
---------------------------------------------------------------------------

    Congress held extensive hearings in the 93d Congress on the subject 
of interference by the judiciary with the legislative 
process.(5)
---------------------------------------------------------------------------
 5. Constitutional Immunity of Members of Congress, hearings before the 
        Joint Committee on Congressional Operations, 93d Cong. 1st and 
        2d Sess.                          -------------------
---------------------------------------------------------------------------

House Procedure When Member Subpenaed or Summoned

Sec. 15.1 The House determined that a summons issued to a Member to 
    appear and testify before a grand jury while the House is in 
    session, and not to depart from the court without leave, invades 
    the rights and privileges of the House, as based upon the 
    immunities from arrest and from being questioned for any speech or 
    debate in the House.

    On Nov. 17, 1941, the House authorized by resolution (H. Res. 340) 
Mr. Hamilton Fish, Jr., of New York, to appear and testify before a 
grand jury of the United States Court for the District of Columbia at 
such time as the House was not sitting in session: (6)
---------------------------------------------------------------------------
 6. H. Res. 340, from the Committee on the Judiciary, 87 Cong. Rec. 
        8933, 8934. 77th Cong. 1st Sess.
---------------------------------------------------------------------------

        Whereas Representative Hamilton Fish, a Member of this House 
    from the State of New York, has been summoned to appear as a 
    witness before a grand jury of the United States Court for the 
    District of Columbia to testify: Therefore be it
        Resolved, That the said Hamilton Fish be, and he is hereby, 
    authorized to appear and testify before the said grand jury at such 
    time as the House is not sitting in session.


[[Page 789]]


The authorizing resolution was adopted pursuant to the report of a 
committee that the service of a summons to a Member to appear and 
testify before a grand jury while the House is in session does invade 
the rights and privileges of the House of Representatives, as based on 
article I, section 6 of the Constitution, providing immunities to 
Members against arrest and against being questioned for any speech or 
debate in either House, but that the House could in each case waive its 
privileges, with or without conditions: (7)
---------------------------------------------------------------------------
 7. 87 Cong. Rec. 8933, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Hatton W.] Sumners of Texas: Mr. Speaker, on behalf of the 
    Committee on the Judiciary I submit a privileged report. . . .

            The Committee on the Judiciary, having investigated and 
        considered the matter submitted to it by House Resolution 335, 
        submits the following report:
            The resolution authorizing the committee to make this 
        investigation is as follows:

                                  ``Resolution

            ``Whereas Hamilton Fish, a Member of this House from the 
        State of New York, has been summoned to appear as a witness 
        before the grand jury of a United States court for the District 
        of Columbia to testify; and
            ``Whereas the service of such a process upon a Member of 
        this House during his attendance while the Congress is in 
        session might deprive the district which he represents of his 
        voice and vote; and
            ``Whereas article I, section 6 of the Constitution of the 
        United States provides:
            `` `They (the Senators and Representatives) shall in all 
        cases, except treason, felony, and breach of the peace, be 
        privileged from arrest during their attendance at the session 
        of their respective Houses, and in going to and returning from 
        the same . . . and for any speech or debate in either House 
        they (the Senators and Representatives) shall not be questioned 
        in any other place'; and
            ``Whereas it appears by reason of the action taken by the 
        said grand jury that the rights and privileges of the House of 
        Representatives may be infringed: Therefore be it
            ``Resolved, That the Committee on the Judiciary of the 
        House of Representatives is authorized and directed to 
        investigate and consider whether the service of a subpena or 
        any other process by a court or a grand jury purporting to 
        command a Member of this House to appear and testify invades 
        the rights and privileges of the House of Representatives. The 
        committee shall report at any time on the matters herein 
        committed to it and that until the committee shall report 
        Representative Hamilton Fish shall refrain from responding to 
        the summons served upon him.''
            The summons referred to is as follows:
            ``[Grand jury, District Court of the United States for the 
        District of Columbia. The United States v. John Doe. No. --. 
        Grand jury original, criminal docket. (Grand jury sitting in 
        room 312 at Municipal Building, Fourth and E Streets NW., 
        Washington, D. C.)]

             ``The President of the United States to Hamilton Fish:

            ``You are hereby commanded to attend before the grand jury 
        of said

[[Page 790]]

        court on Wednesday, the 12th day of November 1941, at 10:30 
        a.m., to testify on behalf of the United States, and not depart 
        the court without leave of the court or district attorney.
            ``Witness the honorable Chief Justice of said court the -- 
        day of ----, 19--.
                                           ``Charles E. Stewart,
                                                            Clerk.
                                          ``By M.M. Cheston,
                                              ``Assistant Clerk.''

            It is the judgment of your committee that the service of 
        this summons does invade the rights and privileges of the House 
        of Representatives.
            We respectfully suggest, however, that in each case the 
        House of Representatives may waive its privileges, attaching 
        such conditions to its waiver as it may determine.
            The language in the summons ``to testify on behalf of the 
        United States, and not depart the court without leave of the 
        court or district attorney'' removes any necessity to examine 
        the question as to whether a summons merely to appear and 
        testify is a violation of the privileges of the House of 
        Representatives. This particular summons commands that 
        Representative Hamilton Fish shall not depart the court without 
        leave of the court or district attorney,'' regardless of his 
        legislative duties as a Member of the House.
            It is recognized that this privilege of the House of 
        Representatives referred to is a valuable privilege insuring 
        the opportunity of its Members against outside interference 
        with their attendance upon the discharge of their 
        constitutional duties.
            At the same time it is appreciated that there is attached 
        to that privilege the very high duty and responsibility on the 
        part of the House of Representatives to see to it that the 
        privilege is so controlled in its exercise that it not 
        unnecessarily interferes with the discharge of the obligations 
        and responsibilities of the Members of the House as citizens to 
        give testimony before the inquisitorial agencies of government 
        as to facts within their possession.

    After the resolution authorizing Mr. Fish to testify was adopted, 
there ensued debate on the scope of the immunities of 
Members.(8) The wording of the subpena in question was drawn 
into issue, since the subpena stated that once the Member appeared to 
testify he would not be permitted to depart from the court without 
leave of the court or of the District Attorney. The House determined by 
the adoption of the resolution that when the Congress is in session it 
is the duty of the House to prevent a conflict between the duty of a 
Member to represent his people at its session and his duty as a citizen 
to give testimony before a court.(9)
---------------------------------------------------------------------------
 8. Id. at pp. 8934, 8949-58.
 9. H. Rept. No. 1415, and the remarks of Mr. Emanuel Celler (N.Y.), 87 
        Cong. Rec. 8933, 8935, 8936, 77th Cong. 1st Sess., Nov. 17, 
        1941.
---------------------------------------------------------------------------

    Parliamentarian's Note: Summons and subpenas directed to officers, 
employees, and Members of the House may also involve the doctrine of 
separation of powers, as for example when calling for documents within 
the possession and under the control of the House of Representatives or 
for

[[Page 791]]

information obtained in an official capacity.(10)
---------------------------------------------------------------------------
10. See Ch. 11, infra, for extensive discussion of questions of 
        privileges of the House as related to summons and subpenas.
---------------------------------------------------------------------------

Sec. 15.2 The House authorized by resolution the Committee on the 
    Judiciary to file appearances and to provide for the defense of 
    certain Members and employees in legal actions related to their 
    performance of official duties.

    On Aug. 1, 1953,(11) the House adopted a resolution 
authorizing the court appearance of certain Members of the House, named 
defendants in a private suit alleging damage to plaintiffs by the 
performance of the defendants' official duties as members of the 
Committee on Un-American Activities. The resolution also authorized the 
Committee on the Judiciary to file appearances and to provide counsel 
and to provide for the defense of those Members and employees. From the 
contingent fund of the House, travel, subsistence, and legal aid 
expenses were authorized in connection with that suit.(12)
---------------------------------------------------------------------------
11. 99 Cong. Rec. 10949 10950, 83d Cong. 1st Sess.
12. For an occasion where a Member inserted into the Record a letter to 
        the Committee on Accounts, opposing a request that the House 
        pay an expense incurred by the Chairman of the House Committee 
        on Un-American Activities, in connection with two libel suits 
        brought against the chairman, see 88 Cong. Rec. A3035, 77th 
        Cong. 2d Sess., Aug. 6, 1942.
---------------------------------------------------------------------------

Sec. 15.3 Where Members and employees of the House were subpenaed to 
    testify in a private civil suit alleging damage from acts committed 
    in the course of their official duties, the House referred the 
    matter to the Committee on the Judiciary to determine whether the 
    rights of the House were being invaded.

    On Mar. 26, 1953,(13) the House was informed of the 
subpena of members and employees of the Committee on Un-American 
Activities in a civil suit contending that acts committed in the course 
of an investigation by the committee had injured the plaintiffs. The 
House by resolution referred the matter to the Committee on the 
Judiciary to investigate whether the rights and privileges of the House 
were being in

[[Page 792]]

vaded.(14) Mr. Charles A. Halleck, of Indiana, delivered 
remarks in explanation of the resolution. Referring to the privileges 
against arrest and against being questioned for speech or debate, he 
said:
---------------------------------------------------------------------------
13. 99 Cong. Rec. 2356-58, 83d Cong. 1st Sess.
            For a more detailed analysis of House procedure when 
        Members, employees, or House papers are subpenaed, see Sec. 18, 
        infra (privilege from arrest) and Ch. 11, infra (privilege in 
        general).
14. H. Res. 190, read into the Record at 99 Cong. Rec. 2356, 83d Cong. 
        1st Sess., and adopted id. at p. 2358. See Sec. 18.4, infra, 
        for the text of the resolution.
---------------------------------------------------------------------------

            Through the years that language has been construed to mean 
        more than the speech or statement made here within the four 
        walls of the House of Representatives; it has been construed to 
        include the conduct of Members and their statements in 
        connection with their activities as Members of the House of 
        Representatives. As a result, it seems clear to me that under 
        the provisions of the Constitution itself the adoption of the 
        resolution which was presented is certainly in order.

    Mr. John W. McCormack, of Massachusetts, also delivered remarks and 
stated that ``for the House to take any other action would be fraught 
with danger, for otherwise there is nothing to stop any number of suits 
being filed against enough Members of the House, and in summoning them, 
to impair the efficiency of the House of Representatives or the Senate 
to act and function as legislative bodies.'' He also stated that the 
fact that the Members and employees subpenaed were presently in 
California in the performance of their official duties was immaterial, 
as they were ``out there on official business, and committees of this 
body are the arms of the House of Representatives.'' (15)
---------------------------------------------------------------------------
15. The discussion above in the House on the subpena of Members was 
        cited in the case of Smith v Crown Publishers, 14 F.R.D. 514 
        (1953).
---------------------------------------------------------------------------



 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 16. For Speech and Debate

    At article I, section 6, clause 1, the Constitution states that 
``for any speech or debate in either House, they [Senators and 
Representatives] shall not be questioned in any other place.'' That 
prohibition, approved at the Constitutional Convention with little if 
any discussion or debate,(16) was

[[Page 793]]

drawn directly from the English parliamentary privilege, as embodied in 
the English Bill of Rights of 1689:
---------------------------------------------------------------------------
16. See 5 Elliott's Debates 406 (1836 ea.) and 2 Records of the Federal 
        Convention 246 (Farrand ed. 1911). See also U.S. v Johnson, 383 
        U.S. 169 (1966) for the history of the incorporation of the 
        privilege into the United States Constitution, and for the 
        history of the constitutional clause in general.
            For the views of early constitutional commentators on the 
        origins and scope of the privilege, see Jefferson's Manual, 
        House Rules and Manual Sec. Sec. 287, 288, 301, 302 (1973) and 
        Story, Commentaries on the Constitution of the United States, 
        Sec. 863, Da Capo Press (N. Y. repute. 1970).
            For more recent commentary, see Comment, Brewster, Gravel 
        and Legislative Immunity, 73 Col. L. Rev. 125 (1973) 
        (hereinafter cited as 73 Col. L. Rev. 125); Cella, The Doctrine 
        of Legislative Privilege of Freedom of Speech or Debate: Its 
        Past, Present and Future as a Bar to Criminal Prosecutions in 
        the Courts, 2 Suffolk L. Rev. 1 (1968); Oppenheim, 
        Congressional Free Speech, 8 Loyola L. Rev. 1 (1955); Yankwich, 
        The Immunity of Congressional Speech Its Origin, Meaning and 
        Scope, 99 U. Pa. L. Rev. 960 (1951).
---------------------------------------------------------------------------

        That the freedom of speech, and debates for proceedings in 
    Parliament, ought not to be impeached or questioned in any court or 
    place out of Parliament.(17)
---------------------------------------------------------------------------
17. 1 W & M, Sess. 2, c. 2, art. 9.

The clause serves not only to insure the independence and unbridled 
debate of Members of the legislature,(18) but also to 
reinforce the constitutional doctrine of separation of 
powers.(19)
---------------------------------------------------------------------------
18. The English parliamentary privilege developed from conflict over 
        the right of legislators to speak freely and to criticize the 
        monarchy. See Wittke, The History of the English Parliamentary 
        Privilege, Ohio State Univ. (1921).
            Not since 1797, during the administration of John Adams, 
        has the executive branch attempted imprisonment of dissenting 
        Congressmen (see 73 Col. L. Rev. 125, 127, 128). See also 
        Sec. 17.4, infra (Justice Department inquiry, where a Senator 
        obtained and disclosed classified materials).
19. U.S. v Johnson, 383 U.S. 169, 170 (1966).
            ``The immunities of the Speech or Debate Clause were not 
        written into the Constitution simply for the personal or 
        private benefit of Members of Congress, but to protect the 
        integrity of the legislative process by insuring the 
        independence of individual legislators.'' U.S. v Brewster, 408 
        U.S. 501, 507 (1972). See also Kilbourn v Thompson, 103 U.S. 
        168, 203 (1881) and Coffin v Coffin, 4 Mass. 1, 28 (1808).
---------------------------------------------------------------------------

    As stated above,(20) the scope and application of the 
immunity for speech and debate has been principally fashioned not by 
Congress but by the courts. Immunity is usually raised as a defense to 
litigation challenging the activities of Congressmen or of Congress 
itself. The Supreme Court has relied heavily upon English parliamentary 
and judicial precedents in order to resolve issues related to the 
operation of the immunity in the United States Congress.(1)
---------------------------------------------------------------------------
20. See Sec. 15, supra.
 1. See, for example, Gravel v U.S., 408 U.S. 606 (1972); U.S. v 
        Brewster, 408 U.S. 501 (1972); U.S. v Johnson, 383 U.S. 169 
        (1966); Tenney v Brandhove, 341 U.S. 367 (1951); Kilbourn v 
        Thompson, 103 U.S. 165 (1880).

---------------------------------------------------------------------------

[[Page 794]]

    The speech and debate that is protected from inquiry either by the 
judicial branch or by the executive branch includes all things done in 
a session of the House by one of its Members in relation to the 
business before it.(2) All speech, debate, and remarks on 
the floor of the House are privileged,(3) as is material not 
spoken on the floor of the House but inserted in the Record by a Member 
with the consent of the House.(4) Republication and 
unofficial circulation of reprints of the Congressional Record are not, 
however, absolutely privileged, either under American law or under 
English law.(5) Such reprints enjoy a qualified privilege, 
so that in a suit for defamation actual malice on the part of the 
Congressman circulating the reprint would have to be 
shown.(6)
---------------------------------------------------------------------------
 2. Powell v McCormack, 395 U.S. 486, 502 (1969), quoting from Kilbourn 
        v Thompson, 103 U.S. 168, 204 (1881).
            For the scope of the immunity as to other legislative 
        activities, see Sec. 17, infra.
 3. ``I will not confine it [the Speech and Debate Clause] to 
        delivering an opinion, uttering a speech, or haranguing in 
        debate, but will extend it to the giving of a vote, to the 
        making of a written report, and to every other act resulting 
        from the nature and in the execution of the office. . . . And I 
        am satisfied that there are cases in which he [the legislator] 
        is entitled to this privilege when not within the walls of the 
        Representatives' chamber.'' Coffin v Coffin, 4 Mass. 1, 27 
        (1808).
 4. See Sec. 16.3, infra.
 5. For the English rule on the subject of unofficial reports and 
        reprints, see Story, Commentaries on the Constitution of the 
        United States, Sec. 863, Da Capo Press (N.Y. repute. 1970) and 
        1 Kent's Commentaries 249, note (8th ed. 1854). It should be 
        noted, however, that publication or republication of speeches 
        made on the floor of Parliament was not in itself lawful at the 
        time of the American Constitutional Convention (see 73 Col. L. 
        Rev. 125, 147, 148).
            For the American rule, see the cases cited at Sec. 16.3, 
        infra. See also Restatement of Torts Sec. Sec. 590 and 611, 
        American Law Institute (St. Paul 1938).
 6. See Story, Commentaries on the Constitution of the United States, 
        Sec. 866 and Restatement of Torts Sec. 590, comment b. See also 
        New York Times Co. v Sullivan, 376 U.S. 254 (1964) (defamatory 
        statement must have been made either with knowledge that it was 
        false or with reckless disregard as to whether it was false or 
        not); Murray v Brancato, 290 N.Y. 52, 48 Northeast 2d 257 
        (1943); Coleman v Newark Morning Ledger Co., 29 N.J. 357, 149 
        A.2d 193 (1959).
            In Trails West, Inc. v Wolff, 32 N.Y. 2d 207 (1973), the 
        New York Court of Appeals held that an allegedly defamatory 
        press release by a Congressman, on a matter of public interest 
        and concern, was entitled to the qualified privilege enunciated 
        in New York Times Co. v Sullivan. Since the plaintiff had not 
        proved actual malice, the case was dismissed.

---------------------------------------------------------------------------

[[Page 795]]

    Protected speech and debate on the floor includes voting records 
and reasons therefore,(7) introducing bills and resolutions, 
and passing bills and resolutions.(8) As early as 1810, 
Chief Justice Marshall refused to inquire into the motives of a state 
legislature whose Members were allegedly bribed to secure passage of an 
act.(9)
---------------------------------------------------------------------------
 7. Smith v Crown Publishers, 14 F.R.D. 514 (1953) (oral deposition of 
        Senator limited as to voting record and motives).
 8. Powell v McCormack, 395 U.S. 486 (1969), and Kilbourn v Thompson, 
        103 U.S. 165 (1880) (participation of Members in passing 
        resolution protected by Speech and Debate Clause).
 9. Fletcher v Peck, 10 U.S. (6 Cranch) 87, 130 (1810).
---------------------------------------------------------------------------

    Controversies relating to the scope of the Speech and Debate Clause 
have arisen in three different types of court proceedings: (1) criminal 
charges, principally bribery, against Members in relation to their 
legislative duties; (10) (2) civil actions for defamation 
against Congressmen: (11) and (3) litigation claiming 
private damage from allegedly unconstitutional resolutions and orders 
of Congress.(12) In the third category is Kilbourn v 
Thompson, where false imprisonment by an order of the House was 
alleged.(13) The Court in that case held that the 
participation of Members in passing a resolution was protected by the 
Speech and Debate Clause, although employees of the House charged with 
the execution of the resolution could be held personally liable for 
enforcing an unconstitutional congressional act.(14) Since 
Kilbourn, the courts have protected Members from civil liability, 
citing their speech and debate immunity, but have held congressional 
employees liable in some cases for executing unconstitutional orders of 
the House or Senate.(15)
---------------------------------------------------------------------------
10. The bribery case of U.S. v Johnson, 383 U.S. 169 (1966) was of 
        first impression for the Supreme Court.
11. The House has in the past censured Members for unparliamentary 
        language (see 2 Hinds' Precedents Sec. 1259).
12. For litigation alleging private damage from committee reports and 
        activities, see Sec. 17, infra.
13. 103 U.S. 165 (1880) (imprisonment for contempt of congressional 
        committee).
14. 103 U.S. at 200-205.
15. See, e.g., Sec. 17.1, infra. The naming of congressional employees 
        as defendants in a case seeking a declaratory judgment has been 
        used as a basis for jurisdiction to entertain the suit, when 
        the claim against House Members was dismissed due to the 
        immunity of speech and debate (see Sec. 16.5, infra).

---------------------------------------------------------------------------

[[Page 796]]

    A similar rule has been followed in cases involving criminal 
charges against Members of Congress. United States v Johnson 
(16) and Brewster v United States (17) 
established the principle that a criminal prosecution could not inquire 
into the motivation, preparation, or content of a Member's speech and 
that the speech could not be made the basis of a bribery or conspiracy 
charge. However, a Member may be convicted for accepting a bribe to 
perform legislative acts, if the prosecution does not inquire into the 
legislative acts themselves but only into the offering and acceptance 
of the bribe. And a Member may be convicted of bribery in relation to 
conduct that is not related to the legislative function.(18)
---------------------------------------------------------------------------
16. 383 U.S. 169 (1966) (for analysis, see Sec. 16.1, infra).
17. 408 U.S. 501 (1972) (for analysis, see Sec. 16.2, infra).
18. See Burton v U.S., 202 U.S. 344 (1906) (conviction of attempt to 
        influence Post Office Department); May v U.S., 175 F2d 994 
        (D.C. Cir. 1949) (conviction of accepting compensation for 
        services before governmental departments).
            The Supreme Court has reserved the question whether 
        prosecution of a Congressman, based upon a narrowly drawn 
        statute to regulate congressional conduct, could inquire into 
        legislative acts without violating the Speech and Debate 
        Clause. See U.S. v Johnson, 383 U.S. 169, 180-185 (1966); U.S. 
        v Brewster, 408 U.S. 501, 521, 529 (1972).
---------------------------------------------------------------------------

    The Speech and Debate Clause immunity precludes any inquiry into 
whether remarks were made in the discharge of official duties, or made 
with malice or ill will. The Supreme Court stated in Tenney v 
Brandhove: (19)
---------------------------------------------------------------------------
19. 341 U.S. 367 (1951). Tenney involved the immunity of state 
        legislators, which the Court found to be on the same footing as 
        the constitutional privilege. The Court refused to inquire into 
        the motives of a state legislative committee which was 
        allegedly violating the civil rights of a citizen.
---------------------------------------------------------------------------

        The claim of an unworthy purpose does not destroy the 
    privilege. Legislators are immune from deterrence to the 
    uninhibited discharge of their legislative duty, not for their 
    private indulgence but for the public good. One must not expect 
    uncommon courage even from legislators. The privilege would be of 
    little value if they could be subjected to the cost and 
    inconvenience and distractions of a trial upon conclusion of the 
    pleader, or to the hazard of a judgment against them based upon a 
    jury's speculation as to motive.(20)
---------------------------------------------------------------------------
20. 341 U.S. at 377.
---------------------------------------------------------------------------

    The immunity of speech and debate would appear to apply to 
Delegates and Resident Commissioners as well as to Members, because of 
its purpose of insuring

[[Page 797]]

the independency and integrity of the legislative body in 
general.(1)
---------------------------------------------------------------------------
 1. In Doty v Strong, 1 Pinn. 84 (Wis. Territ. 1840), the 
        constitutional privilege from arrest was held applicable to 
        Delegates. Delegates and Resident Commissioners, as 
        governmental officials, have at least the common law privilege 
        from suit enunciated in Barr v Mateo, 360 U.S. 564 (1959). For 
        the common law privilege in general, see Sec. 15, supra.
---------------------------------------------------------------------------

                            Cross References
Committee reports, activities, and employees protected by the Speech 
    and Debate Clause, see Sec. 17, infra.
Legislative activities protected by the Speech and Debate Clause, see 
    Sec. 17, infra.

                         Collateral References
Brewster, Gravel and Legislative Immunity, 73 Col. L. Rev. 125 
    (comment) (1973).
Bribed Congressman's Immunity from Prosecution, 75 Yale L. Jour. 335 
    (1965).
Cella, The Doctrine of Legislative Privilege of Freedom of Speech or 
    Debate: Its Past, Present and Future as a Part of Criminal 
    Prosecutions in the Courts, 2 Suffolk L. Rev. 1 (1968).
Constitutional Privilege of Legislators: Exemption from Arrest and 
    Action for Defamation, 9 Minn. L. Rev. 442 (comment) (1925).
Defamation--Publication of Defamatory Statements Made by U.S. Senator 
    at Press Conference is Qualifiedly Privileged, 28 Fordham L. Rev. 
    363 (1959).
Ervin (Senator, N.C.), The Gravel and Brewster Cases: An Assault on 
    Congressional Independence, 59 Va. L. Rev. 175 (Feb. 1973).
Immunity Under the Speech or Debate Clause for Republication and From 
    Questioning About Sources, 71 Mich. L. Rev. 1251 (note) (May 1973).
Oppenheim, Congressional Free Speech, 8 Loyola L. Rev. 1 (1955).
``They Shall Not Be Questioned . . .''--Congressional Privilege to 
    Inflict Verbal Injury, 3 Stan. L. Rev. 486 (comment) (1951).
U.S. v Johnson, 337 F2d 180 (4th Cir. 1964), 78 Harv. L. Rev. 1473 
    (comment) (1965).
United States Constitution Annotated, Library of Congress, S. Doc. No. 
    92-82, 117-122, 92d Cong. 2d Sess. (1972).
Veeder, Absolute Immunity in Defamation: Legislative and Executive 
    Proceedings, 10 Col. L. Rev. 131 (1910).
Yankwich, The Immunity of Congressional Speech: Its Origin, Meaning and 
    Scope, 99 U. Pa. L. Rev. 960 
    (1951).                          -------------------

As Defense to Bribery or Conspiracy

Sec. 16.1 The Supreme Court held a Member of the 86th Congress immune 
    from conviction for conspiracy to defraud the government, where the 
    prosecution was based upon a speech made by the Member on the floor 
    of the House.(2)
---------------------------------------------------------------------------
 2. U.S. v Johnson, 383 U.S. 169 (1966), in which the court affirmed 
        the voidance of the conviction by a United States Court of 
        Appeals, 337 F2d 180 (4th Cir. 1964). The Supreme Court opinion 
        is reprinted at 117 Cong. Rec. 32456, 92d Cong. 1st Sess., 
        Sept. 20, 1971.

---------------------------------------------------------------------------

[[Page 798]]

    On June 30, 1960, Mr. Thomas F. Johnson, of Maryland, was 
recognized under a previous order to speak on the floor of the House. 
He delivered a speech repudiating critical attacks on the independent 
savings and loan industry of Maryland.(3)
---------------------------------------------------------------------------
 3. 106 Cong. Rec. 15258, 15259, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

    Mr. Johnson was subsequently indicted and convicted for conspiracy 
to defraud the United States, among other charges. The conspiracy count 
was based upon alleged payment to Mr. Johnson to deliver a speech in 
the House favorable to savings and loan institutions and to influence 
the Justice Department to dismiss criminal charges against these 
institutions.(4)
---------------------------------------------------------------------------
 4. See 383 U.S. at 170, 171.
---------------------------------------------------------------------------

    During prosecution of the charges against Mr. Johnson, extensive 
inquiry was made into the manner of preparation of the June 30 speech, 
the precise ingredients and phrases of the speech, and the motive in 
delivering the speech.(5)
---------------------------------------------------------------------------
 5. See 383 U.S. at 173-177 and notes 4-6.
---------------------------------------------------------------------------

    The Supreme Court voided the conviction of Mr. Johnson, and held 
that the Speech and Debate Clause of the Constitution precluded 
judicial inquiry into the motivation for a Congressman's speech and 
prevented such a speech from being made the basis of a criminal charge 
against him for conspiracy to defraud the government.(6)
---------------------------------------------------------------------------
 6. U.S. v Johnson, 383 U.S. 169, 184, 185 (1966).
---------------------------------------------------------------------------

Sec. 16.2 The Supreme Court upheld the conviction of a former Senator 
    for accepting bribes to act in a certain way on legislation before 
    his committee, where the prosecution did not require inquiry into 
    legislative acts or motivation.(7)
---------------------------------------------------------------------------
 7. U.S. v Brewster, 408 U.S. 501 (1972). The Court overruled the U.S. 
        District Court for the District of Columbia, which had 
        dismissed the indictment on the ground that Senator Brewster 
        was immune from conviction under the Supreme Court's 
        interpretation of the Speech and Debate Clause in U.S. v 
        Johnson, 383 U.S. 169 (1966) (see Sec. 16.1, supra).
            See also U.S. v Dowdy, 479 F2d 213 (4th Cir. 1973), cert. 
        denied, 414 U.S. 823 (1973), where a United States Court of 
        Appeals found an infringement of the Speech and Debate Clause 
        as to some but not all of the counts of an indictment against a 
        former Member of the House.
---------------------------------------------------------------------------

    Where a former United States Senator was indicted for asking

[[Page 799]]

and accepting sums of money in exchange for acting a certain way on 
postage legislation before the Senate Committee on Post Office and 
Civil Service, of which he was a member, the Supreme Court held that 
the indictment was a proper one. The Court first stated that there were 
a variety of legitimate activities of Congressmen, political in nature 
rather than legislative, which were not protected by the Speech and 
Debate Clause of the Constitution.(8) The Court then stated:
---------------------------------------------------------------------------
 8. 408 U.S. at 512. Federal courts have used the reasoning of Brewster 
        in order to question the use by Congressmen of their franking 
        privilege. In Hoellen v Annunzio, 468 F2d 522 (7th Cir. 1972), 
        cert. denied, 412 U.S. 953 (1973), the court held that the 
        Speech and Debate Clause did not prohibit inquiry into use of 
        the frank, since the mailings challenged were for political 
        purposes and only incidental to the legislative process. See 
        also Schiaffo v Helstoski, 350 F Supp 1076 (D.N.J. 1972).
---------------------------------------------------------------------------

        Taking a bribe is, obviously, no part of the legislative 
    process or function; it is not a legislative act. . . . When a 
    bribe is taken, it does not matter whether the promise for which 
    the bribe was given was for the performance of a legislative act as 
    here. . . . And an inquiry into the purpose of the bribe ``does not 
    draw into question the legislative acts of the defendant Member of 
    Congress or his motives for performing them.'' (9)
---------------------------------------------------------------------------
 9. 408 U.S. at 526, quoting from U.S. v Johnson, 383 U.S. 169, 185 
        (1966).
---------------------------------------------------------------------------

As Defense to Defamation

Sec. 16.3 Where a citizen claimed defamation by a Congressman in 
    remarks inserted in the Congressional Record, a federal court held 
    that the Speech and Debate Clause protects material inserted in the 
    Record with the consent of the House, but that republished excerpts 
    are not protected.(10)
---------------------------------------------------------------------------
10. McGovern v Martz, 182 F Supp 343 (D.D.C. 1960).
            Republication and unofficial circulation of reprints of the 
        Congressional Record, if libelous, are not protected by the 
        Speech and Debate Clause. See Long v Ansell, 69 F2d 386, aff., 
        293 U.S. 76 (1934) (indicating that circulated reprints of 
        Record would be libel per se if allegations of petition proved) 
        and Gravel v U.S., 408 U.S. 606 (1972) (private republication 
        of classified study disclosed at Senate subcommittee hearing 
        not privileged from grand jury inquiry).
            If a public official claims to have been libeled by 
        reprints of the Congressional Record, it would appear that he 
        would have to prove ``actual malice'' on the part of the 
        Congressman sought to be sued, under New York Times Co. v 
        Sullivan, 376 U.S. 254 (1964). A state court held a Congressman 
        qualifiedly privileged from libel for remarks made during a 
        press conference by applying the Times rule, in Trails West, 
        Inc. v Wolff, 32 N.Y. 2d 207, ---- N.E. 2d ---- (1973).

---------------------------------------------------------------------------

[[Page 800]]

    In the course of a suit by Mr. George S. McGovern, of South Dakota, 
against a newspaper publisher, for falsely reporting Mr. McGovern as 
the sponsor of a Communist front organization, the publisher 
counterclaimed for defamation, based upon a Congressional Record insert 
by Mr. McGovern on Aug. 5, 1958. The insert mentioned the publisher by 
name.(11)
---------------------------------------------------------------------------
11. 104 Cong. Rec. A-7032, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

    The United States District Court for the District of Columbia 
dismissed the counterclaim, holding that a Congressman's constitutional 
immunity from being questioned for speech and debate extends to all 
material inserted by him in the Congressional Record, with the consent 
of the House.(12)
---------------------------------------------------------------------------
12. 182 F Supp at 347.
---------------------------------------------------------------------------

    The court added that the absolute privilege to inform fellow 
legislators becomes a qualified privilege when portions of the 
Congressional Record are republished and unofficially disseminated. No 
allegation of republication had been made in the controversy before the 
court.(13)
---------------------------------------------------------------------------
13. 182 F Supp at 347, 348.
---------------------------------------------------------------------------

Sec. 16.4 A federal court dismissed charges of slander against a 
    Senator because the words complained of were delivered in a speech 
    in the Senate Chamber and were protected by the Speech and Debate 
    Clause, despite allegations they were not spoken in discharge of 
    official duties.(14)
---------------------------------------------------------------------------
14. Cochran v Couzens, 42 F2d 783 (D.C. Cir. 1930), cert. denied, 282 
        U.S. 874 (1930).
---------------------------------------------------------------------------

    On Apr. 12, 1928, Senator James Couzens, of Michigan, delivered a 
speech on the Senate floor in which he discussed a large additional tax 
assessment made against him by the Internal Revenue Service when he was 
a member of a special committee investigating Internal Revenue Service 
abuses.(15)
---------------------------------------------------------------------------
15. 69 Cong. Rec. 6253-60, 70th Cong. 1st Sess. Senator Couzens had 
        been appointed on Mar. 24, 1924, to a special committee to 
        investigate the Internal Revenue Service. 66 Cong. Rec. 4023.
            S. Res. 213, to investigate the tax assessment against 
        Senator Couzens and the threatened intimidation by the Internal 
        Revenue Service, was introduced in the Senate and referred to 
        the Committee on the Judiciary in the 70th Congress. 69 Cong. 
        Rec. 7379, 70th Cong. 1st Sess., Apr. 28, 1928.
---------------------------------------------------------------------------

    In the course of his remarks, Senator Couzens mentioned the name of 
Mr. Cochran, a former clerk of the Internal Revenue

[[Page 801]]

Service, who Senator Couzens stated had offered him ``inside'' 
information of the Service, for a contingent fee, which would enable 
him to have the assessment voided.(16)
---------------------------------------------------------------------------
16. Id. at pp. 6258, 6259. Letters written by and about Mr. Cochran 
        were inserted in the Record id. at p. 6259.
---------------------------------------------------------------------------

    Mr. Cochran subsequently sued Senator Couzens for slander, alleging 
that the remarks made in the Senate by the Senator were not spoken in 
discharge of his official duties. A United States Court of Appeals held 
that Senator Couzens' remarks in the Senate Chamber were absolutely 
privileged under the Speech and Debate Clause despite that 
allegation.(17)
---------------------------------------------------------------------------
17. Cochran v Couzens, 42 F2d 783 (D.C. Cir. 1930), cert. denied, 282 
        U.S. 874 (1930).
---------------------------------------------------------------------------

Defense to Suit by Excluded Member

Sec. 16.5 Where a Member-elect excluded from the 90th Congress 
    challenged the exclusion in court and named Members and officers of 
    the House as defendants, the Supreme Court declared the Members 
    immune from suit under the Speech and Debate Clause but upheld the 
    challenge as against the named officers.(18)
---------------------------------------------------------------------------
18. Powell v McCormack, 395 U.S. 486 (1969). The court affirmed in part 
        and reversed in part the finding of the U.S. Court of Appeals, 
        395 F2d 577 (D.C. Cir. 1968) and remanded to the U.S. District 
        Court for the District of Columbia.
            Portions of the text of the opinion, relating to the Speech 
        and Debate Clause, appear at 117 Cong. Rec. 32459, 92d Cong. 
        1st Sess. For a complete synopsis of the House expulsion 
        proceedings in this case, see Sec. 9.3, supra.
---------------------------------------------------------------------------

    On Mar. 1, 1967, the House excluded from membership Member-elect 
Adam C. Powell, of New York.(19)
---------------------------------------------------------------------------
19. 113 Cong. Rec. 5038, 90th Cong. 1st Sess. (see H. Res. 278).
---------------------------------------------------------------------------

    Mr. Powell subsequently filed suit in Federal District Court 
challenging the action of the House in excluding him; he named as 
defendants the Speaker of the House, certain named Members, and the 
Clerk, Sergeant at Arms, and Doorkeeper of the House.(20) 
The defendants as

[[Page 802]]

serted, among other claims, that the Speech and Debate Clause of the 
Constitution was an absolute bar to Mr. Powell's suit.(1)
---------------------------------------------------------------------------
20. See the Speaker's announcement that the suit had been filed, 113 
        Cong. Rec. 6035, 90th Cong. 1st Sess., Mar. 9, 1967. 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 at 113 Cong. 
        Rec. 6036-40.
            See 113 Cong. Rec. 8729-62 for further briefs, memoranda, 
        and the opinion of the U.S. District Court Judge dismissing the 
        original complaint.
 1. See Point II (A) of Defendants' Memorandum of Points and 
        Authorities in Support of Defendants' Motion to Dismiss in 
        Powell v McCormack (No. 559-67, U.S. Dist. Ct. for D.C.), 
        reprinted at 113 Cong. Rec. 8743-45, 90th Cong. 1st Sess., Apr. 
        10, 1967.
---------------------------------------------------------------------------

    When the litigation reached the Supreme Court, the Court held that 
the Speech and Debate Clause barred suit against the respondent 
Congressmen but did not bar action against the legislative officials 
charged with unconstitutional activity.(2)
---------------------------------------------------------------------------
 2. The Court stated that the fact that the House officials were acting 
        pursuant to express orders of the House did not preclude 
        judicial review of the constitutionality of the underlying 
        legislative decision, 395 U.S. at 501-506, and applied the 
        doctrine that, ``although an action against a Congressman may 
        be barred by the Speech or Debate Clause, legislative employees 
        who participated in the unconstitutional activity are 
        responsible for their acts.'' 395 U.S. at 504.
---------------------------------------------------------------------------


 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 17. For Legislative Activities

    The constitutional clause prohibiting questioning of a Member about 
any speech or debate in the House is not confined merely to remarks 
delivered in the Chamber and printed in the Congressional 
Record.(3) As long as legislators are ``acting in the sphere 
of legitimate legislative activity,'' (4) they are protected 
not only from the consequence of litigation but also from the burden of 
defending themselves.(5) The immunity may also extend to 
congressional aides and employees where they assist in an integral way 
in the legislative process.(6) Thus, Members of

[[Page 803]]

the House and certain staff, engaged in legislative activities, are 
immune in preparing and submitting committee reports, but officials 
such as the Public Printer may or may not be immune, depending on the 
legislative necessity of their actions.(7)
---------------------------------------------------------------------------
 3. The courts have stated that the protection of the clause, at U.S. 
        Const. art. I, Sec. 6, clause 1, extends to every ``act 
        resulting from the nature and in the execution of the office,'' 
        including an act ``not within the walls of the Representatives' 
        chamber,'' Coffin v Coffin, 4 Mass. 1, 27 (1808), and to 
        ``committee reports, resolutions, and things generally done in 
        a session of the House by one of its Members in relation to the 
        business before it,'' Powell v McCormack, 395 U.S. 486, 502 
        (1969), quoting Kilbourn v Thompson, 103 U.S. 168, 204 (1881).
 4. Tenney v Brandhove, 341 U.S. 367, 376 (1951).
 5. Dombrowski v Eastland, 387 U.S. 82, 85 (1967); Powell v McCormack, 
        395 U.S. 486, 505 (1969).
 6. The Supreme Court stated in Gravel v U.S., 408 U.S. 606, 616, 617 
        (1972) (J. White) (analyzed at Sec. 17.4, infra), ``that it is 
        literally impossible, in view of the complexities of the modern 
        legislative process . . . for Members of Congress to perform 
        their legislative tasks without the help of aides and 
        assistants; that the day to day work of such aides is so 
        critical to the Members' performance that they must be treated 
        as the latter's alter ego; and that if they are not so 
        recognized, the central role of the Speech and Debate Clause . 
        . . will inevitably be diminished and frustrated.'' See also 
        Doe v McMillan, 412 U.S. 306 (1973) for the immunity of 
        committee staff engaged in legitimate legislative acts.
            Compare Kilbourn v Thompson, 103 U.S. 165 (1881), wherein 
        the Sergeant at Arms of the House was held liable for false 
        imprisonment where he executed an unconstitutional resolution.
 7.  See Sec. 17.1, infra.
---------------------------------------------------------------------------

    The activities of congressional committees when pursuing 
investigations are absolutely privileged as to Members of 
Congress.(8)
---------------------------------------------------------------------------
 8. See the cases noted to Sec. 17.1, infra.
            In Coleman v Newark Morning Ledger Co., 29 N.J. 357, 149 
        A.2d 193 (1959) (see case comment, 28 Fordham L. Rev. 363 
        [1959]), a state court held that a press conference given by a 
        Senator was privileged, where he was acting as the voice of the 
        subcommittee, and informing the public of the results of the 
        investigation. Another state court held in Hancock v Burns, 158 
        Cal. App. 2d 785, 333 P.2d 456 (1st Dist. 1958) (see case 
        comment, 11 Stan. L. Rev. 194 [1958]) that a letter sent to a 
        citizen's employer describing him as a security risk was 
        privileged, since the letter was an ordinary means adopted by a 
        state legislative committee to publicize its investigative 
        results.
---------------------------------------------------------------------------

    However, not every legislative activity is protected by the Speech 
and Debate Clause. Congressmen have been convicted for conspiracy and 
bribery in relation to activities which, but for the illegal 
compensation involved, are often undertaken by Congressmen within the 
scope of their duties.(9) In the 1972 case of Gravel v 
United States,(10) the court restricted protected 
legislative activities to those which are an ``integral part of the 
deliberative and communicative processes by which Members participate 
in committee and House proceedings with respect to the consideration 
and passage or rejection of proposed legislation or

[[Page 804]]

with respect to other matters which the Constitution places within the 
jurisdiction of either House.'' (11) Therefore, a 
legislative aide to a Congressman could be subpenaed by a grand jury in 
order to testify about the source of classified government documents 
and about private arrangements for republication of the 
documents.(12)
---------------------------------------------------------------------------
 9. See Burton v U.S., 202 U.S. 344 (1906) (intercession before Post 
        Office Department); May v U.S., 175 F2d 994 (D.C. Cir. 1949) 
        (services rendered before governmental departments for 
        citizen); Johnson v U.S., 383 U.S. 169 (1966) (intercession 
        before Justice Department).
10. 408 U.S. 606 (1972) (see Sec. 17.4, infra).
11. 408 U.S. at 625.
12. See Sec. 17.4, infra.
            Compare McGrain v Daugherty, 273 U.S. 135, 174, 175 (1927): 
        ``A legislative body cannot legislate wisely or effectively in 
        the absence of information respecting the conditions which the 
        legislation is intended to affect or change; and where the 
        legislative body does not itself possess the requisite 
        information--which is not infrequently true--recourse must be 
        had to others who do possess it.'' See also Hill Parents 
        Ass'n., Inc. v Giaimo, 287 F Supp 98 (D. Conn. 1968) and 
        Preston v Edmundson, 263 F Supp 370 (N.D. Okla. 1967) 
        (Congressmen acting under color of office when informing public 
        through press releases and television interviews).
---------------------------------------------------------------------------

    In Gravel and in Brewster v United States, decided in the same 
term,(13) the court excluded from the protection of the 
clause those activities it considered only peripheral to legislative 
activity and essentially political in nature, such as constituent 
service in general and obtaining and disseminating information in 
particular.(14)
---------------------------------------------------------------------------
13. 408 U.S. 501 (1972)
14. In Gravel, 408 U.S. at 627, the court rejected the opinion of the 
        Court of Appeals below, U.S. v Doe, 455 F2d 753, 760 (1st Cir. 
        1972), that a common law privilege attached to the official 
        informing role of Congressmen.
            In Brewster, 408 U.S. at 512, 513, Chief Justice Burger 
        stated for the majority: ``It is well known, of course, that 
        Members of the Congress engage in many activities other than 
        the purely legislative activities protected by the Speech or 
        Debate Clause. These include a wide range of legitimate 
        `errands' performed for constituents, the making of 
        appointments with government agencies, assistance in securing 
        government contracts, preparing so-called `news letters' to 
        constituents, news releases, and speeches delivered outside the 
        Congress. The range of these related activities has grown over 
        the years. They are performed in part because they have come to 
        be expected by constituents, and because they are a means of 
        developing continuing support for future elections. Although 
        these are entirely legitimate activities, they are political in 
        nature rather than legislative, in the sense that term has been 
        used by the court in prior cases.'' In his dissent, Justice 
        White stated at 557: ``Serving constituents is a crucial part 
        of a legislator's duties. Congressmen receive a constant stream 
        of complaints and requests for help or service. Judged by the 
        volume and content of a Congressman's mail, the right to 
        petition is neither theoretical nor ignored. It has never been 
        thought unethical for a Member of Congress whose performance on 
        the job may determine the success of his next campaign not only 
        to listen to the petitions of interest groups in his state or 
        district, which may come from every conceivable group of 
        people, but also to support or oppose legislation serving or 
        threatening those interests.''

---------------------------------------------------------------------------

[[Page 805]]

    Many Congressmen viewed those decisions as posing a threat to the 
independence of congressional speech and of legislative 
activities.(15) Congressional hearings have been held on the 
subject.(16)
---------------------------------------------------------------------------
15. See Ervin (Senator, N.C.), The Gravel and Brewster Cases: An 
        Assault on Congressional Independence, 59 Va. L. Rev. 175 
        (1973). Senator Ervin stated id. at p. 186 that the Supreme 
        Court's definitions of unprotected political activity reflected 
        a ``shocking lack of understanding of the essential elements of 
        the legislative process and the representative role of the 
        legislative branch.'' James C. Cleveland, Representative from 
        New Hampshire, stated in Legislative Immunity and the Role of 
        the Representative, 14 N.H. Bar Jour. 139 (1973) that the court 
        ``had undertaken to threaten gravely the independence of 
        Congress as a coequal branch of government.''
            See also, for critical commentaries on the decisions, 
        Reinstein and Silverglate, Legislative Privilege and the 
        Separation of Powers, 86 Harv. L. Rev. 1113 (1973); Note, 
        Immunity Under the Speech or Debate Clause for Republication 
        and from Questioning About Sources, 71 Mich. L. Rev. 1251 
        (1973). Another commentator suggested in Brewster, Gravel and 
        Legislative Immunity, 73 Col. L. Rev. 125, 147, 148 (1973) that 
        the reliance of the court in Brewster and in Gravel upon 
        English precedents, in order to conclude that republication of 
        congressional materials and dissemination of information was 
        not privileged, was misplaced, since at the time of the English 
        precedents legislators had no responsibility to inform their 
        constituents of governmental activities and policies.
---------------------------------------------------------------------------

                            Cross References
Immunity of officers, officials and employees, see Ch. 6, supra.

                         Collateral References
Absolute Tort Immunity for Legislative Correspondence?, 11 Stan. L. 
    Rev. 194 (Dec. 1958).
---------------------------------------------------------------------------
16. Hearings, Constitutional Immunity of Members of Congress 
        (legislative role in gathering and disclosing information), 
        Joint Committee on Congressional Operations, 93d Cong. 1st 
        Sess. (Mar. 1973).
---------------------------------------------------------------------------
Blacklisting Through the Official Publication of Congressional Reports, 
    81 Yale L. Jour. 188 (Dec. 1971).
Congressional Papers and Judicial Subpoenas, 23 U.C.L.A. L. Rev. 57 
    (1975).
Defamation--Publication of Defamatory Statements Made by U.S. Senator 
    at Press Conference is Qualifiedly Privileged, 28 Fordham L. Rev. 
    363 (1959).
Dombrowski v Eastland--A Political Compromise and Its Impact, 22 
    Rutgers L. Rev. 137 (1967).
First Amendment--Congressional Investigations and the Speech or Debate 
    Clause, 40 U. Missouri at Kansas City L. Rev. 108 (1971).

[[Page 806]]

Speech or Debate Clause--Declaratory and Injunctive Relief Against a 
    Congressional Committee, 1970 Wisc. L. Rev. 1216 (1970).
The Scope of Immunity for Legislators and Their Employees, 7 Yale L. 
    Jour. 366 (1967).
United States Constitution Annotated, Library of Congress, S. Doc. No. 
    9282, 117-122, 92d Cong. 2d Sess. 
    (1972).                          -------------------

Committee Activities, Reports, and Employees

Sec. 17.1 Where an injunction was sought to restrain the publication of 
    a committee report alleged to defame certain persons identified 
    therein, the Supreme Court held that: (1) members of the committee 
    and stall were immune under the Speech and Debate Clause insofar as 
    engaged in legislative acts in relation to the report; (2) persons 
    with authorization from Congress performing the nonlegislative 
    function of distributing materials infringing on individual rights 
    are not absolutely immune under the clause; and (3) the Public 
    Printer and the Superintendent of Documents were immune under the 
    common-law doctrine of official immunity to the extent they served 
    legitimate legislative functions in publishing and distributing the 
    report.(17)
---------------------------------------------------------------------------
17. Doe v McMillan, 412 U.S. 306 (1973).
            For further information on the immunity of committee 
        activities and the immunity of committee employees, see 
        Dombrowski v Eastland, 387 U.S. 82 (1967), Barsky v U.S., 167 
        F2d 241 (1948), and Stamler v Willis, 415 F2d 1365 (1969), 
        cert. denied, 399 U.S. 929 (1970).
            In Dombrowski, the Court dismissed an action for damages 
        for conspiracy to seize records unlawfully that had been 
        brought against members of the Senate Internal Security 
        Subcommittee of the Judiciary Committee; the Court stated that 
        since the subject matter of the records was within the 
        subcommittee's jurisdiction, issuance of subpenas to a 
        Louisiana legislative committee to obtain the records was 
        privileged as to subcommittee members. The Court remanded as to 
        a subcommittee employee, whose immunity was not absolute.
            In Barsky, the court upheld a conviction for willful 
        failure to produce records for the House Committee on Un-
        American Activities and dismissed the defense of improper 
        committee conduct, since the enabling resolution authorized the 
        inquiry in question, and the inquiry was protected legislative 
        activity.
            In Stamler, where citizens complained of hindrance of free 
        speech by members and employees of the House Committee on Un-
        American Activities, the Federal Court of Appeals for the 7th 
        Circuit upheld the immunity of committee members from suit, but 
        stated that officials of the committee could be held personally 
        liable for following orders given to them by the legislature. 
        The court stated that it had been clearly established that 
        ``liability, including personal tort liability, could be 
        imposed on an official for following orders given to him by the 
        legislature, even though the legislators could not be held 
        personally liable.'' Stamler v Willis, 415 F2d 1365, 1368 (7th 
        Cir. 1969), cert. denied, 399 U.S. 929 (1970).

---------------------------------------------------------------------------

[[Page 807]]

    On Feb. 5, 1969, the House passed House Resolution No. 76, 
authorizing the Committee on the District of Columbia to investigate 
and report upon the organization, operation, and management of any 
subdivision of the District of Columbia government.(18) 
Pursuant to that resolution, the committee prepared and submitted to 
the House a report, entitled ``Investigation and Study of the Public 
School System of the District of Columbia.''
---------------------------------------------------------------------------
18. 115 Cong. Rec. 2784, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

    Suit was filed in a federal court by persons named in the report, 
alleging the report to be defamatory and praying for a declaratory 
judgment and an injunction against further publication and distribution 
of the report. The suit named as defendants members of the Committee on 
the District of Columbia, the clerk, staff director, and counsel of the 
committee, a consultant and investigator for the committee, the 
Superintendent of Documents and the Public Printer, officials of the 
District of Columbia government, and the United States of America. The 
Federal Court of Appeals for the District of Columbia Circuit affirmed 
the district court's dismissal of the case, on the grounds that the 
committee members and their staff were immune from suit under the 
Speech and Debate Clause and that the Public Printer, Superintendent of 
Documents and D.C. officials were protected under the doctrine of 
official immunity (Barr v Mateo, 360 U.S. 564). The court had been 
advised that the members of the committee were not in fact seeking 
further publication or distribution of the report.(19)
---------------------------------------------------------------------------
19. Doe v McMillan, 459 F2d 1304, 1322 (D.C. Cir. 1972).
---------------------------------------------------------------------------

    The Supreme Court reversed in part, affirmed in part, and remanded 
to the Court of Appeals. The Court found that the congressional 
committee members, members of their staff, the committee consultant and 
the committee investigator were absolutely immune under the Speech and 
Debate Clause insofar as they were engaged in legislative acts of com

[[Page 808]]

piling the report, submitting it to the House, and voting for its 
publication.(20) Said the Court:
---------------------------------------------------------------------------
20. 412 U.S. 306, 311-313.
---------------------------------------------------------------------------

        Without belaboring the matter further, it is plain to us that 
    the complaint in this case was barred by the Speech or Debate 
    Clause insofar as it sought relief from the Congressmen-Committee 
    members, from the Committee staff, from the consultant, or from the 
    investigator, for introducing material at Committee hearings that 
    identified particular individuals, for referring the report that 
    included the material to the Speaker of the House, and for voting 
    for publication of the report. Doubtless, also, a published report 
    may, without losing Speech or Debate Clause protection, be 
    distributed to and used for legislative purposes by Members of 
    Congress, congressional committees, and institutional or individual 
    legislative functionaries. At least in these respects, the actions 
    upon which petitioners sought to predicate liability were 
    ``legislative acts,'' Gravel v United States, supra, at 618, and, 
    as such, were immune from suit.(1)
---------------------------------------------------------------------------
 1. 412 U.S. at 312.
---------------------------------------------------------------------------

    The Court found, however, that other persons acting under the 
orders of Congress were not absolutely immune under the clause:

        Members of Congress are themselves immune for ordering or 
    voting for a publication going beyond the reasonable requirements 
    of the legislative function, Kilbourn v Thompson, supra, but the 
    Speech or Debate Clause no more insulates legislative functionaries 
    carrying out such nonlegislative directives than it protected the 
    Sergeant at Arms in Kilbourn v. Thompson when, at the direction of 
    the House, he made an arrest that the courts subsequently found to 
    be ``without authority.'' 103 U.S. at 200. See also Powell v 
    McCormack, 395 U.S., at 504; cf. Dombrowski v. Eastland, 387 U.S. 
    82 (1967). The Clause does not protect ``criminal conduct 
    threatening the security of the person or property of others, 
    whether performed at the direction of the Senator in preparation 
    for or in execution of a legislative act or done without his 
    knowledge or direction.'' Gravel v United States, supra, at 622. 
    Neither, we think, does it immunize those who publish and 
    distribute otherwise actionable materials beyond the reasonable 
    requirements of the legislative function.(2)
---------------------------------------------------------------------------
 2. 412 U.S. at 315, 316.
---------------------------------------------------------------------------

    The Court discussed the common-law principle of official immunity 
(Barr v Mateo, 360 U.S. 564) in relation to the Public Printer and 
Superintendent of Documents:

        We conclude that, for the purposes of the judicially fashioned 
    doctrine of immunity, the Public Printer and the Superintendent of 
    Documents are no more free from suit in the case before us than 
    would be a legislative aide who made copies of the materials at 
    issue and distributed them to the public at the direction of his 
    superiors. See Dombrowski v Eastland, 387 U.S. 82 (1967). The scope 
    of inquiry becomes equivalent to the inquiry in the context

[[Page 809]]

    of the Speech or Debate Clause, and the answer is the same. The 
    business of Congress is to legislate; Congressmen and aides are 
    absolutely immune when they are legislating. But when they act 
    outside the ``sphere of legitimate legislative activity,'' Tenney 
    v. Brandhove, 341 U.S., at 376, they enjoy no special immunity from 
    local laws protecting the good name or the reputation of the 
    ordinary citizen.
        Because we think the Court of Appeals applied the immunities of 
    the Speech or Debate Clause and of the doctrine of official 
    immunity too broadly, we must reverse its judgment and remand the 
    case for appropriate further proceedings. We are unaware, from this 
    record, of the extent of the publication and distribution of the 
    report which has taken place to date. Thus, we have little basis 
    for judging whether the legitimate legislative needs of Congress, 
    and hence the limits of immunity, have been exceeded. These matters 
    are for the lower courts in the first instance.(3)
---------------------------------------------------------------------------
 3. 412 U.S. 324, 325.
---------------------------------------------------------------------------

Sec. 17.2 When the Senate and the House in the 84th Congress ordered 
    printed as a Senate document an allegedly libelous committee 
    report, a federal court held that, under the Speech and Debate 
    Clause, it could not enjoin the printing and distribution of the 
    report.(4)
---------------------------------------------------------------------------
 4. Methodist Federation for Social Action v Eastland, 141 F Supp 729 
        (D.D.C. 1956).
---------------------------------------------------------------------------

    On Jan. 16, 1956, the Senate adopted Senate Concurrent Resolution 
No. 62, to authorize the printing of a committee report as a Senate 
document and to authorize the printing of 75,000 additional copies 
thereof.(5) The report had been issued by the Subcommittee 
on Internal Security of the Senate Judiciary Committee, and was 
entitled ``The Communist Party of the United States--What It Is--How It 
Works--a Handbook for Americans.''
---------------------------------------------------------------------------
 5. 102 Cong. Rec. 534, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Apr. 23, 1956, Senate Concurrent Resolution No. 62 was called up 
in the House.(6) Mr. Wayne L. Hays, of Ohio, stated in 
reference to the resolution:
---------------------------------------------------------------------------
 6. 102 Cong. Rec. 6777, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

        May I say . . . that this resolution is a Senate resolution and 
    there was quite a good deal of discussion in the committee about 
    it. The House Administration Committee took the position that we 
    had no authority to go behind the Senate resolution and verify the 
    contents of the document. If the other body certified it, it was 
    our belief that we could not go behind the resolution and I would 
    like to read to you just two lines. When the resolution was 
    reported out a motion was made by the gentleman from Ohio [Mr. 
    Schenck], seconded by the gentleman from Louisiana [Mr. Long], and 
    in the motion this language was included:

[[Page 810]]

            This committee takes no responsibility for the contents of 
        this pamphlet, Handbook for Americans. The responsibility rests 
        entirely on the Senate Subcommittee on Internal Security of the 
        Committee on the Judiciary.

    The House agreed to the resolution.(7)
---------------------------------------------------------------------------
 7. Id. at p. 6778.
---------------------------------------------------------------------------

    Subsequently, the Methodist Federation for Social Action filed suit 
in federal court seeking to enjoin the release of the committee report, 
on the ground that the report falsely, defamatorily, and without a 
hearing, declared that the federation was a Communist front 
organization.(8)
---------------------------------------------------------------------------
 8. Methodist Federation for Social Action v Eastland, 141 F Supp 729 
        (D.D.C. 1956).
---------------------------------------------------------------------------

    The court declined to order relief, holding that since the report 
was ordered printed by the Public Printer and Superintendent of 
Documents, pursuant to a congressional resolution of both the House and 
Senate, the court had no power to prevent publication under the Speech 
and Debate Clause of the Constitution.

Sec. 17.3 In order to extend the immunity of speech and debate to the 
    printing of a committee report, the House in the 91st Congress 
    authorized by resolution the printing of the report where a federal 
    court had previously enjoined the Public Printer from such 
    printing.

    On Dec. 14, 1970, Mr. Richard H. Ichord, of Missouri, offered a 
resolution (H. Res. 1306) in relation to a report prepared by the 
Committee on Internal Security, which he chaired.(9) The 
report (H. Rept. No. 91-1607) was entitled ``Limited Survey of 
Honoraria Given Guest Speakers for Engagements at Colleges and 
Universities.'' Various plaintiffs had argued in federal court that the 
printing of the report should be enjoined, since it acted to hinder the 
free speech of private citizens. The federal court had enjoined the 
Public Printer from publishing the report, but had declined to act 
against the committee or its members, since they were immune under the 
Speech and Debate Clause of the Constitution.(10)
---------------------------------------------------------------------------
 9. 116 Cong. Rec. 41355, 91st Cong. 1st Sess.
10. The U.S. District Court of the District of Columbia had held, in 
        Hentoff v Ichord, 318 F Supp 1175 (D.D.C. 1970), that it could 
        enjoin the Public Printer from publishing the committee report 
        which it found hindered the exercise of free speech by 
        citizens, but that it could not enjoin the committee members 
        from any action, since they could not be questioned for any 
        speech or debate in the House. The opinion of the court is 
        reprinted at 116 Cong. Rec. 41365-68, 91st Cong. 2d Sess., Dec. 
        14, 1970.

---------------------------------------------------------------------------

[[Page 811]]

    Mr. Ichord offered House Resolution No. 1306 by which the House 
could authorize the printing of the report and thereby prevent the 
federal court from enjoining its publication.(11) After 
debate on the resolution, the resolution was agreed to by the House and 
the committee report was ordered printed.(12)
---------------------------------------------------------------------------
11. See the text of the resolution, id. at pp. 41355-57, incorporating 
        the history of the preparation of the report and the history of 
        the court case. See also Mr. Ichord's remarks, id. at pp. 
        41358-64, for his analysis of the constitutional issues 
        involved.
12. Id. at p. 41372.
---------------------------------------------------------------------------

Disclosure of Classified Material (``Pentagon Papers'')--Immunity of 
    Legislative Aide

Sec. 17.4 Where a Senator convened a subcommittee meeting to read into 
    the record of the meeting portions of a classified Defense 
    Department study (``Pentagon Papers'') and then arranged for 
    private republication of the study, an aide who assisted him in 
    those activities was held by the Supreme Court not immune from 
    grand jury questioning.(13)
---------------------------------------------------------------------------
13. Gravel v U.S., 408 U.S. 606 (1972). Senator Maurice R. Gravel 
        (Alaska) had intervened to quash grand jury subpenas directed 
        to his aide. The Supreme Court reviewed and modified protective 
        orders issued by a U.S. District Court, U.S. v Doe, 332 F Supp 
        930 (D. Mass. 1971) and by a U.S. Court of Appeals, U.S. v Doe, 
        455 F2d 753 (1st Cir. 1972), which orders had limited the 
        questions which could be asked of the Senator's aide (Dr. 
        Leonard Rodberg).
---------------------------------------------------------------------------

    On the night of June 29, 1971, Senator Gravel, Chairman of the 
Subcommittee on Buildings and Grounds of the Senate Public Works 
Committee, convened a meeting of the subcommittee at which he read 
extensively from a classified Defense Department study on the history 
of United States policy during the Vietnam conflict. He then placed the 
entire 47 volumes of the study in the public record of the committee 
meeting.(14) He then arranged

[[Page 812]]

with a private publisher for republication of the text of the 
study.(15) One of Senator Gravel's aides, Dr. Leonard 
Rodberg, had assisted Senator Gravel in preparing for and conducting 
the hearing, and in arranging for private republication of the 
study.(16)
---------------------------------------------------------------------------
14. 408 U.S. at 609. See Senator Gravel's subsequent explanation of his 
        actions at the subcommittee meeting, 117 Cong. Rec. 23578, 92d 
        Cong. 1st Sess., July 6, 1971. The text of Senator Gravel's 
        statement made at the subcommittee meeting immediately prior to 
        reading the study was reprinted at 117 Cong. Rec. 23723, 92d 
        Cong. 1st Sess., July 7, 1971.
            The Supreme Court held, in New York Times Co. v U.S., 403 
        U.S. 713 (1971), that the government could not restrain the 
        press from publishing the study read by Senator Gravel, 
        commonly termed the ``Pentagon Papers.''
15. See 408 U.S. at 609, 610.
16. See 408 U.S. at 609-611.
---------------------------------------------------------------------------

    The Justice Department initiated a grand jury investigation into 
possible criminal conduct in relation to the reading and republication 
of the study, and subpenaed Dr. Rodberg to testify before the grand 
jury.(17)
---------------------------------------------------------------------------
17. 408 U.S. at 608. See the remarks of Senator Sam Ervin (N.C.) on 
        Sept. 20, 1972, analyzing the Justice Department inquiry and 
        subpenas, and maintaining that the investigation was violating 
        the immunity of Congressmen and their aides for speech and 
        debate and legislative activities, 117 Cong. Rec. 32444-49, 92d 
        Cong. 1st Sess. Senator Ervin inserted into the Record relevant 
        court decisions on the Speech and Debate Clause, id. at pp. 
        32449-62 (Tenney v Brandhove, 341 U.S. 367 [1951]; Kilbourn v 
        Thompson, 103 U.S. 168 [1880]; U.S. v Johnson, 383 U.S. 169 
        [1966]; Powell v McCormack, 395 U.S. 386 [1969]; Cochran v 
        Couzens, 42 F2d 783 [1930], cert. denied, 282 U.S. 874 [1930]; 
        Dombrowski v Eastland, 387 U.S. 82 [1967]).
---------------------------------------------------------------------------

    Senator Gravel intervened in the proceedings in order to quash the 
subpenas to Dr. Rodberg and others, and in order to require the 
government to specify the questions to be asked of Dr. 
Rodberg.(18) A United States District Court (19) 
and then a United States Court of Appeals (20) issued 
protective orders restricting the questions which could be asked of Dr. 
Rodberg.
---------------------------------------------------------------------------
18. For a compilation of legal motions, letters, affidavits, and orders 
        concerning the subpena to Dr. Rodberg, see 117 Cong. Rec. 
        42752-822, 92d Cong. 1st Sess., Nov. 22, 1971 (extension of 
        remarks of Senator Gravel).
19. U.S. v Doe, 332 F Supp 930 (D. Mass. 1971).
20. U.S. v Doe, 455 F2d 753 (1st Cir. 1972).
---------------------------------------------------------------------------

    The Supreme Court agreed with the lower courts' findings that the 
arrangements for the unofficial publication of the committee record 
were outside the protection of the Clause, but, contrary to those 
courts' conclusions, included the Senator and his aide as both 
vulnerable to questioning and possible liability regarding those 
arrangements. ``While the Speech or Debate Clause recognizes speech, 
voting and other legislative acts as exempt from liability that might 
otherwise attach,'' the Court stated, ``it does not privilege either 
Senator or aide to violate an otherwise valid criminal law in preparing 
for or implementing leg

[[Page 813]]

islative acts.'' The Court found the protective orders to be overly 
restrictive of the scope of the grand jury inquiry, particularly in not 
allowing questions relating to the source of the Pentagon 
documents.(1) The Court held that: (1) the Senator's aide 
was immune only for legislative acts for which the Senator would be 
immune; (2) (2) the arrangement for republication of the 
Defense Department study was not protected under the Speech and Debate 
Clause; (3) (3) the aide (or the Senator himself) could be 
questioned by the grand jury about any criminal third-party conduct or 
republication arrangements where the questions did not implicate 
legislative action of the Senator.(4)
---------------------------------------------------------------------------
 1. 408 U.S. at 626-629.
 2. 408 U.S. at 621, 622.
 3. 408 U.S. at 622, 625, 626.
 4. 408 U.S. at 628, 629.
---------------------------------------------------------------------------

Sec. 17.5 The Senate adopted a resolution authorizing payment from its 
    contingent fund of expenses incurred by a Senator as a party in 
    litigation involving the Speech and Debate Clause of the United 
    States Constitution, and providing for the appointment of a select 
    committee to appear as amicus curiae before the United States 
    Supreme Court and to file a brief on behalf of the Senate in the 
    action.

    On Mar. 23, 1972,(5) the Senate discussed Senate 
intervention in the case of Gravel v United States, involving the 
Speech and Debate Clause of the Constitution and pending in the Supreme 
Court of the United States, Senator Maurice R. Gravel, of Alaska, being 
a party thereto. The Senate adopted Senate Resolution 280 and President 
pro tempore Allen J. Ellender, of Louisiana, appointed Members of the 
Senate pursuant to the resolution:
---------------------------------------------------------------------------
 5. 118 Cong. Rec. 9902, 9907, 9915, 9920, 9921, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

                               Resolution
Authorizing Senate intervention in the Supreme Court proceedings on the 
    issue of the scope of article I, section 6, the so-called speech 
    and debate clause of the Constitution

        Whereas the Supreme Court of the United States on Tuesday, 
    February 22, 1972, issued writs of certiorari in the case of Gravel 
    against United States; and
        Whereas this case involves the activities of the junior Senator 
    from Alaska, Mr. Gravel; and
        Whereas in deciding this case the Supreme Court will consider 
    the scope and meaning of the protection provided to Members of 
    Congress by article I, section 6, of the United States 
    Constitution, commonly referred to as the

[[Page 814]]

    ``Speech or Debate'' clause, including the application of this 
    provision to Senators, their aides, assistants, and associates, and 
    the types of activity protected; and
        Whereas this case necessarily involves the right of the Senate 
    to govern its own internal affairs and to determine the relevancy 
    and propriety of activity and the scope of a Senator's duties under 
    the rules of the Senate and the Constitution; and
        Whereas this case therefore concerns the constitutional 
    separation of powers between legislative branch and executive and 
    judicial branches of Government; and

        Whereas a decision in this case may impair the constitutional 
    independence and prerogatives of every individual Senator, and of 
    the Senate as a whole; and
        Whereas the United States Senate has a responsibility to insure 
    that its interests are properly and completely represented before 
    the Supreme Court: Now, therefore, be it
        Resolved, That the President pro tempore of the Senate is 
    hereby authorized to appoint a bipartisan committee of Senators to 
    seek permission to appear as amicus curiae before the Supreme Court 
    and to file a brief on behalf of the United States Senate; and be 
    it further
        Resolved, That the members of this bipartisan committee shall 
    be charged with the responsibility to establish limited legal fees 
    for services rendered by outside counsel to the committee, to be 
    paid by the Senate pursuant to these resolutions; be it further
        Resolved, That any expenses incurred by the Committee pursuant 
    to these resolutions including the expense incurred by the Junior 
    Senator from Alaska as a party in the above mentioned litigation in 
    printing records and briefs for the Supreme Court shall be paid 
    from the contingent fund of the Senate on vouchers authorized and 
    signed by the President pro tempore of the Senate and approved by 
    the Committee on Rules and Administration; be it further
        Resolved, That these resolutions do not express any judgment of 
    the action that precipitated these proceedings; and be it further
        Resolved, That the Secretary of the Senate transmit a copy of 
    these resolutions to the Supreme Court.
        Mr. [Michael J.] Mansfield [of Montana]: Mr. President, there 
    are some recommendations relative to the counsel to be appointed 
    from the Democratic side and three associate counsel to assist the 
    chief counsel. Would the Chair make those nominations at this time 
    on behalf of the majority?
        The President Pro Tempore: Under the resolution just agreed to, 
    the Chair appoints the Senator from North Carolina (Mr. Ervin) 
    chief counsel, and the Senator from Mississippi (Mr. Eastland), the 
    Senator from Rhode Island (Mr. Pastore), and the Senator from 
    Georgia (Mr. Talmadge) as associate counsel.
        The Presiding Officer (Mr. Stafford) subsequently stated: The 
    Chair, on behalf of the President pro tempore, under Senate 
    Resolution 280, makes the following appointments to the committee 
    established by that resolution: The Senator from New Hampshire Mr. 
    Cotton), the Senator from Colorado

[[Page 815]]

    (Mr. Dominick), the Senator from Maryland (Mr. Mathias), and the 
    Senator from Ohio (Mr. Saxbe).



 
                               CHAPTER 7
 
                              The Members
 
                   D. IMMUNITIES OF MEMBERS AND AIDES
 
Sec. 18. From Arrest

    Article I, section 6, clause 1 of the Constitution states of 
Senators and Representatives that ``they shall in all cases, except 
treason, felony, and breach of the peace, be privileged from arrest 
during their attendance at the session of their respective Houses, and 
in going to and returning from the same.'' (6) Unlike the 
Speech and Debate Clause, which was not judicially defined until the 
20th century,(7) issues relating to the immunity from arrest 
were litigated soon after the adoption of the 
Constitution.(8)
---------------------------------------------------------------------------
 6. See, in general, House Rules and Manual Sec. 90 (1973) (comment to 
        the constitutional provision). For Jefferson's comments, see 
        House Rules and Manual Sec. Sec. 287-292, 300-309 (1973). See 
        also, for early commentary, Story, Commentaries on the 
        Constitution of the United States, Sec. Sec. 856-862, Da Capo 
        Press (N. Y. repute. 1970). Story attributed to Congress the 
        power of contempt to punish those who unlawfully arrest 
        Members, id. at Sec. 860, but the House has no such general 
        contempt power. See Kilbourn v Thompson, 103 U.S. 189 (1881) 
        and Marshall v Gordon, 243 U.S. 521 (1917).
 7. See Sec.  16, supra.
 8. The first cases on the constitutional privilege were Coxe v 
        M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa. 1798) and U.S. v Cooper, 
        4 Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
---------------------------------------------------------------------------

    The immunity from arrest has been extensively discussed on the 
floor of the House, since subpenas, summonses, and arrests of Members 
while the House is in session are presented to the House as questions 
of privilege. The House has decided that a summons or subpena to a 
Member to appear in court, or before a grand jury, while the House is 
in session invades the rights and privileges of the 
House.(9) The permission of the House is required for a 
Member to attend upon a court during sessions of Congress; the House 
usually by resolution permits

[[Page 816]]

court appearance at such time as the Congress is not actually in 
session.(10) On most occasions, Representatives and Senators 
seek accommodation between their duty to appear in court and their duty 
to attend upon the sessions of Congress,(11) since the 
purpose of the clause is not for the benefit or convenience of 
individual legislators but is to prevent interference with the 
legislative process by the courts and by grand juries.(12)
---------------------------------------------------------------------------
 9. See Sec. 18.1, infra.
            Subpenas, summonses, and arrests are presented as questions 
        of House privilege and not personal privilege, since they 
        affect the rights of the House collectively, its safety, 
        dignity, and integrity of proceedings. See Rule IX, House Rules 
        and Manual Sec. 661 (1973). And resolutions proposing action by 
        the House are called up under a question of the privileges of 
        the House.
            The personal privilege of the Member may also be involved, 
        however, since that privilege rests primarily on the 
        constitutional immunities. See House Rules and Manual Sec. 663 
        (1973). For an instance where a grand jury summons was raised 
        as a question of personal privilege, see 6 Cannon's Precedents 
        Sec.  586.
10. See Ch. 11, infra.
11. See Sec. Sec. 18.1, 18.3, 18.5, infra.
12. See U.S. v Brewster, 408 U.S. 501, 507 (1972); James v Powell, 274 
        N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966); U.S. v Cooper, 4 
        Dall. 341 (U.S. Cir. Ct. D. Pa. 1800).
---------------------------------------------------------------------------

    The Constitutional Convention adopted a privilege from arrest with 
substantially the same scope as the English parliamentary 
privilege.(13) Under the common law, the privilege did not 
apply to any indictable offenses.(14) The words ``treason, 
felony, and breach of the peace'' have been construed by the Supreme 
Court to remove from the operation of the privilege all criminal 
offenses.(15) Criminal offenses are those in which fine and/
or imprisonment are imposed as punishment.(16) Therefore, 
the immunity applies only to arrest in civil cases, which was a common 
procedure at the time of the Constitutional Convention.(17) 
Since

[[Page 817]]

arrests seldom attach in contemporary practice to civil suits, the 
clause has been described as virtually obsolete.(18)
---------------------------------------------------------------------------
13. Although the parliamentary privilege from arrest may date from the 
        sixth century, the first legislative recognition appeared in 
        1603 in the statute of 1 James I, C. 13. See Taswell-Longmead, 
        English Constitutional History, 324-332 and note 5 (2d ed. 
        1881).
            The arrest immunity, like the speech and debate immunity, 
        was included in the U.S. Constitution with little debate or 
        discussion. See vol. 2, Records of the Federal Convention 140, 
        141, 156, 166, 180, 246, 254, 256, 267, 567, 593, 645; vol. 3, 
        148, 312, 384; vol. 4, 40-43 (Farrand ed. 1911).
14. Story, Commentaries on the Constitution of the United States, 
        Sec. 862, Da Capo Press (N.Y. repute. 1970); Williamson v U.S., 
        207 U.S. 425 (1908).
15. Williamson v U.S., 207 U.S. 425 (1908). The Court relied on 
        parliamentary precedents, and upon the meaning of the clause at 
        the time of the Constitutional Convention.
16. See 21 Am Jur 2d Criminal Law 1.
17. Long v Ansell, 293 U.S. 76, 82 (1934) noted that ``when the 
        Constitution was adopted, arrests in civil suits were still 
        common in America. It is only to such arrests that the 
        provision applies.''
            For an early case where a Member had been arrested in a 
        civil suit and released on bail, and his surety agreed to 
        surrender him four days after the close of the congressional 
        session, see Coxe v M'Clenachen, 3 Dall. 478 (Sup. Ct. Pa. 
        1798).
18. See U.S. Constitution Annotated, Library of Congress, S. Doc. No. 
        92-82, p. 117, 92d Cong. 2d Sess. (1972).
---------------------------------------------------------------------------

    Questions have arisen, however, whether subpenas and summonses 
directed to Members of Congress, either as defendants in court cases, 
or as witnesses in civil and in criminal cases, constitute prohibited 
arrest. The rulings of the courts, both state and federal, have 
uniformly expressed the principle that a summons or subpena is not an 
arrest, and is not precluded by the Constitution.(19)
---------------------------------------------------------------------------
19. ``Senator Long [served with summons as defendant in civil suit for 
        libel] contends that article I, section 6, clause 1 of the 
        Constitution, confers upon every Member of Congress, while in 
        attendance within the District, immunity in civil cases not 
        only from arrest, but also from service of process. Neither the 
        Senate, nor the House of Representatives, has ever asserted 
        such a claim in behalf of its Members. Clause 1 defines the 
        extent of the immunity. Its language is exact and leaves no 
        room for a construction which would extend the privilege beyond 
        the terms of the grant.'' Long v Ansell, 293 U.S. 76, 82 
        (1934).
            For other cases holding that Congressmen named as parties 
        in civil cases are not immune from summonses and service of 
        process, see Sec. 18.4, infra.
            For cases holding that Congressmen are not immune from 
        grand jury subpenas, to testify as witnesses, see 
        Sec. Sec. 18.1, 18.2, infra.
            For cases holding that Congressmen are not immune from 
        subpenas to testify as witnesses in criminal cases, when called 
        either by the defendant or by the government, see Sec. 18.3, 
        infra.
---------------------------------------------------------------------------

    Likewise, a Senator or Representative is not exempt from service of 
civil process and attachment of a bank account,(20) may not 
have a civil suit postponed as a matter of right,(1) and is 
not immune from orders relating to the taking of a 
deposition.(2)
---------------------------------------------------------------------------
20. Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898).
 1. Nones v Edsall, 1 Wall. 189, 18 F. Cases No. 10, 290 (U.S. Cir. Ct. 
        D.N.J. 1848). The court did grant the continuance as a matter 
        of judicial discretion.
 2. Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz. 1970).
---------------------------------------------------------------------------

    The courts have recognized, however, that Congressmen sought to be 
summoned or subpenaed have a duty to be present at the sessions of 
Congress. Therefore, Congressmen have been allowed to accommodate their 
court appearance with their congressional duties.(3)
---------------------------------------------------------------------------
 3. In James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966), 
        the court stated in reference to subpenas served upon Members 
        that where actual interference with the legislative process is 
        shown the courts will make suitable provision by way of 
        adjournment or fixing of a time and place of examination which 
        will obviate any real conflict.
            In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (U.S. Cir. Ct. D. 
        Pa. 1800) the court stated that Members were not exempt from a 
        subpena to testify in a criminal case, but that nonattendance 
        would not necessarily result in an attachment for arrest. A 
        satisfactory reason could appear to the court to excuse 
        attendance.
            In Respublica v Duane, 4 Yeates 347 (Sup. Ct. Pa. 1807), 
        the court refused an attachment against Members for not obeying 
        a subpena, where it was alleged they were not in attendance 
        upon Congress. The court stated that a reasonable time to 
        respond must be given, and that the failure of a Member to 
        attend upon sessions must be proved.

---------------------------------------------------------------------------

[[Page 818]]

    In at least one case, a Member who did not seek such accommodation 
was adjudged after the close of the session in contempt and ordered 
fined and imprisoned.(4)
---------------------------------------------------------------------------
 4. See James v Powell, 274 N.Y.S. 2d 192, 26 App. Div. 2d 295 (1966), 
        aff'd, 277 N.Y.S. 2d 135, 18 N.Y. 2d 931, 223 N.E. 2d 562 
        (1966), motion to modify order granted, 279 N.Y.S. 2d 972, 19 
        N.Y. 2d 813, 226 N.E. 2d 705 (1967). The court stated that 
        interference with the duties of congressional attendance had 
        neither been alleged nor shown. The order for appearance later 
        became mooted in the case.
            An attachment during a session for willful failure to obey 
        a subpena might involve a civil arrest, prohibited by the 
        immunity from arrest. See 6 Cannon's Precedents Sec. 588.
---------------------------------------------------------------------------

    If a Member were to be arrested in a civil suit during a session of 
Congress, Congress could free him through a writ of habeas 
corpus.(5)
---------------------------------------------------------------------------
 5. Jefferson's Manual, House Rules and Manual Sec. 288 (1973). On one 
        occasion an arrested Member was freed by a House officer (see 3 
        Hinds' Precedents Sec. 2676).
---------------------------------------------------------------------------

    The immunity from arrest applies not only while Congress is in 
session, but also while a Member is en route to or from the session. 
The time spent traveling must be a reasonable time, and the journey 
must not be abandoned through substantial deviations.(6) If 
a Member-elect with credentials travels to a session,(7) and 
is de

[[Page 819]]

nied a seat because of an election contest, he is entitled to the 
privilege until a reasonable time for his journey home has 
elapsed.(8) Several state court decisions have held that if 
a Member of Congress is absent from a session and his absence is not 
for official but for private business, the privilege does not apply to 
him.(9)
---------------------------------------------------------------------------
 6. See Hoppin v Jenckes, 8 R.I. 453 (1867) (court stated that 40 days 
        before and after session was unreasonably long); Lewis v 
        Elmendorf, 2 Johnson's Cases 222 (Sup. Ct. N.Y. 1801) (arrest 
        upheld, Member 10 days en route after leaving home); Miner v 
        Markham, 28 F 387 (E.D. Wisc. 1886) (deviation to Milwaukee, 
        while traveling from California to Washington, D.C., 
        allowable).
            For commentary on a reasonable time for travel and 
        unallowable deviations while in transit, see Jefferson's 
        Manual, House Rules and Manual Sec. 289 (1973).
 7. Jefferson's Manual states that the privilege from arrest takes 
        place by force of election. House Rules and Manual Sec. 300 
        (1973).
 8. Dunton & Co. v Halstead, 2 Clark 236 (Diet. Ct. Phil. 1840) (after 
        loss of seat, excluded Member-elect delayed departure from 
        Washington pending granting of per diem allowance for return; 
        immunity from arrest upheld).
 9. Worth v Norton, 56 S.C. 56 (1899); compare Respublica v Duane, 4 
        Yeates 347 (Sup. Ct. Pa. 1807).
---------------------------------------------------------------------------

    Delegates and Resident Commissioners are entitled to the immunity 
as well as Members.(10)
---------------------------------------------------------------------------
10. Doty v Strong, 1 Pinn. 84 (Sup. Ct. Wisc. Territ. 1840).
---------------------------------------------------------------------------

                         Collateral References
Congressional Immunity from Arrest, 70 U.S. L. Rev. 306 (June 1936).
Constitutional Privilege of Legislators: Exemption from Arrest and 
    Action for Defamation, 9 Minn. L. Rev. 442 (1925).
Legislative Immunity, Arrest Under Motor Vehicle Code, Limits of the 
    Legislative Immunity, 7 U. Pitt. L. Rev. 486 (1951).
Redfield, The Immunities of Congress from Process, 10 Geo. Wash. L. 
    Rev. 513 (Mar. 1942).
Whether a Member of Congress may, during a session of Congress, be 
    subpenaed as a witness in judicial proceedings (Memo of Legislative 
    Counsel, U.S. Senate), 103 Cong. Rec. 4203-05, 85th Cong. 1st 
    Sess., Mar. 22, 1957.                          -------------------

Grand Jury Summons

Sec. 18.1 The House has determined that a summons issued to a Member to 
    appear and testify before a grand jury while the House is in 
    session invades the rights and privileges of the 
    House.(11)
---------------------------------------------------------------------------
11. But see Gravel v U.S., 408 U.S. 606 (1972) in which the Supreme 
        Court, in holding a legislative aide not immune from 
        questioning by a grand jury about alleged illegal acts related 
        to the activities of a Senator, implied that the Senator 
        himself would not be immune from a grand jury subpena, and 
        ruled that no constitutional or other privilege shielded the 
        aide or ``any other witness'' from questioning by a grand jury 
        about alleged illegal activities not implicating legislative 
        conduct. 408 U.S. at 628.
---------------------------------------------------------------------------

    On Nov. 17, 1941, the House authorized by resolution Mr. Hamilton 
Fish, Jr., of New York, to appear and testify before a grand jury of 
the United States District Court for the District of Columbia at such 
time as the House was not sitting in ses

[[Page 820]]

sion.(12) The authorizing resolution was adopted pursuant to 
the report of a committee that the service of a summons to a Member to 
appear and testify before a grand jury while the House is in session 
does invade the rights and privileges of the House of Representatives, 
as based on article I, section 6 of the Constitution, providing 
immunities to Members against arrest and against being questioned for 
any speech and debate in either House.(13) The report 
indicated, however, that in each case the House may waive its 
privileges, attaching such conditions to its waiver as it may 
determine.
---------------------------------------------------------------------------
12. H. Res. 340, from the Committee on the Judiciary, 87 Cong. Rec. 
        8933, 8934, 77th Cong. 1st Sess.
13. The report, from the Committee on the Judiciary, was read into the 
        Record at 87 Cong. Rec. 8933. The committee has been empowered 
        by H. Res. 335, 77th Cong. 1st Sess., to ``investigate and 
        consider whether the service of a subpena or any other process 
        by a court or a grand jury purporting to command a Member of 
        this House to appear and testify invades the rights and 
        privileges of the House of Representatives.''
---------------------------------------------------------------------------

    After the resolution authorizing Mr. Fish to testify was adopted, 
there ensued debate on the scope of the immunities of 
Members.(14) The wording of the subpena in question was 
drawn into issue, since the subpena stated that once the Member 
appeared to testify he would not be permitted to depart from the court 
without leave of the court or of the District Attorney. The House 
determined by the adoption of the resolution that when the Congress is 
in session it is the duty of the House to prevent a conflict between 
the duty of a Member to represent his people at its session and his 
duty as a citizen to give court testimony.(15)
---------------------------------------------------------------------------
14. 87 Cong. Rec. 8934, 8949-58.
15. H. Rept. No. 1415, 87 Cong. Rec. 8933 and the remarks of Mr. 
        Emanuel Celler (N.Y.), 87 Cong. Rec. 8935, 8936.
            For a critical analysis of the resolution adopted in 
        relation to the grand jury appearance of Mr. Fish, see 
        Redfield, The Immunities of Congress from Process, 10 Geo. 
        Wash. L. Rev. 513 (Mar. 1942).
---------------------------------------------------------------------------

    Similarly, on Feb. 16, 1942,(16) the House authorized 
Mr. Steven A. Day, of Illinois, to appear and testify before a grand 
jury of the U.S. District Court for the District of Columbia when the 
House was not sitting in session. The summons to Mr. Day was raised as 
a question of personal privilege in the House.
---------------------------------------------------------------------------
16. 88 Cong. Rec. 1267, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 18.2 A Member, having received a subpena to testify for the 
    government before a

[[Page 821]]

    grand jury, refused to answer the subpena under his privilege as a 
    Member of the House, but stated he would make an effort to meet 
    with the grand jury when the House was not in session.

    On May 3, 1949,(17) Mr. Harold H. Velde, of Illinois, 
informed the House that he had been served with a subpena issued by a 
federal grand jury sitting in New York City demanding that he appear to 
testify in relation to an alleged violation of a conspiracy statute. He 
further stated:
---------------------------------------------------------------------------
17. 95 Cong. Rec. 5544, 5545, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. Speaker, most of the Members of the House are more familiar 
    than I with the procedure of grand juries and other courts in 
    subpenaing Members of Congress while it is in session. It appears 
    at this time that the debate and discussion and vote on labor 
    legislation here will continue during the time I am called to 
    appear before the grand jury; therefore I shall use my prerogative 
    as a Member of Congress and refuse to answer this subpena. For the 
    record, however, I want to say that I shall make every attempt to 
    meet with the grand jury in New York City and give it any 
    information I may have concerning the matters they are now 
    investigating.(18)
---------------------------------------------------------------------------
18. Id. at p. 5544.
---------------------------------------------------------------------------

    Parliamentarian's Note: Mr. Velde did appear before the grand jury 
in New York City the following weekend after having made telephonic 
arrangements with the foreman of the grand jury.

Subpena of Member as Witness

Sec. 18.3 Certain Members having been subpenaed by the defendant to 
    appear as witnesses in a contempt of Congress case, the House 
    adopted a resolution authorizing them to appear at such time when 
    the House was not sitting in session.(19)
---------------------------------------------------------------------------
19. In U.S. v Cooper, 4 U.S. (4 Dall.) 341 (Cir. Ct. D. Pa. 1800), it 
        was held that there is no privilege such as to exempt Members 
        of Congress from the service, or obligation, of a subpena 
        obtained by a defendant in a criminal case. Justice Chase 
        stated that every man charged with an offense was entitled to 
        compulsory process to secure the attendance of his witnesses.
            See also Gravel v U.S., 408 U.S. 606, 615 (1972) (dicta 
        that Members of Congress not immune from service of process as 
        witness in a criminal case).
---------------------------------------------------------------------------

    On Feb. 23, 1948, Mr. John S. Wood, of Georgia, arose to state a 
question of the privilege of the House, and laid before the House 
subpenas to testify, obtained by the defendant, in a contempt of 
Congress case, addressed to himself and to three other Members of

[[Page 822]]

the House.(20) After some debate, the House agreed to 
Resolution No. 477, authorizing the Members to appear in court at such 
time as the House was not sitting in session:
---------------------------------------------------------------------------
20. 94 Cong. Rec. 1557, 1558, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

        Whereas Representatives John S. Wood, J. Hardin Peterson, John 
    R. Murdock, and Gerald W. Landis, Members of this House, have been 
    subpenaed to appear as witnesses before the District Court of the 
    United States for the District of Columbia to testify at 10 a.m. on 
    the 24th day of February 1948, in the case of the United States v. 
    Richard Morford, Criminal No. 366-47; and
        Whereas by the privileges of the House no Member is authorized 
    to appear and testify but by the order of the House: Therefore be 
    it
        Resolved, That Representatives John S. Wood, J. Hardin 
    Peterson, John R. Murdock, and Gerald W. Landis are authorized to 
    appear in response to the subpenas of the District Court of the 
    United States for the District of Columbia in the case of the 
    United States v. Richard Morford at such time as when the House is 
    not sitting in session; and be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the said court as a respectful answer to the subpenas of the said 
    court.(1)
---------------------------------------------------------------------------
 1. For similar resolutions adopted by the House upon the service of 
        subpenas to Members in congressional contempt cases, see 99 
        Cong. Rec. 1658, 83d Cong. 1st Sess., Mar. 5, 1953; 97 Cong. 
        Rec. 11571, 82d Cong. 1st Sess., Sept. 18, 1951; 97 Cong. Rec. 
        6084, 82d Cong. 1st Sess., June 4, 1951; 94 Cong. Rec. 4347, 
        80th Cong. 2d Sess., Apr. 12, 1948; 94 Cong. Rec. 4264, 80th 
        Cong. 2d Sess., Apr. 8, 1948; and 94 Cong. Rec. 2224, 80th 
        Cong. 2d Sess., Mar. 5, 1948.
---------------------------------------------------------------------------

    In explanation of the resolution, Mr. Earl C. Michener, of 
Michigan, referred to the precedent set on Nov. 17, 1941, when the 
House adopted a similar resolution, in reference to grand jury 
subpenas.(2) He further stated:
---------------------------------------------------------------------------
 2. See Sec. 18.1, supra.
---------------------------------------------------------------------------

        First, the Constitution lodges a discretion in the House. This 
    resolution simply exercises that discretionary power. This 
    privilege can only be waived by the House, and not by the 
    individual Member. It seems that Members of some committees have 
    been voluntarily appearing in response to subpenas to appear in 
    court. No question was raised. The right of the House to function 
    and the right of Members to be present and vote must not be 
    interfered with.(3)
---------------------------------------------------------------------------
 3. 94 Cong. Rec. 1559, 80th Cong. 2d Sess.
            When Members are subpenaed to appear as witnesses in civil 
        cases, where they are named as parties, the House may adopt 
        resolutions authorizing them to appear when the House is not 
        sitting in session (see 100 Cong. Rec. 10904, 83d Cong. 2d 
        Sess., July 19, 1954; 100 Cong. Rec. 1675-77, 83d Cong. 2d 
        Sess., Feb. 12, 1954).

---------------------------------------------------------------------------

[[Page 823]]

Sec. 18.4 Where Members and employees of the House were subpenaed to 
    testify in a private civil suit alleging damage from acts committed 
    in the course of their official duties, the House referred the 
    matter to the Committee on the Judiciary to determine whether the 
    rights of the House were being invaded.(4)
---------------------------------------------------------------------------
 4. Congressmen are not immune from the service or obligation of 
        summonses or subpenas when named as defendants in civil cases, 
        Long v Ansell, 293 U.S. 76 (1934). Contempt may lie against a 
        Congressman for refusing to obey a subpena when named as a 
        defendant in a civil case. James v Powell, 274 N.Y.S. 2d 192, 
        26 App. Div. 2d 295 (1966), aff'd, 277 N.Y.S. 2d 135, 18 N.Y. 
        2d 931, 223 N.E. 2d 562 (1966), motion to modify order granted, 
        279 N.Y.S. 2d 972, 19 N.Y. 2d 813, 226 N.E. 2d 705 (1967). See 
        also Yuma Greyhound Park, Inc. v Hardy, 472 P.2d 47 (Ariz. 
        1970); James v Powell, 250 N.Y.S. 2d 635, 43 Misc. 2d 314 
        (1964); People on Complaint of James v Powell, 243 N.Y.S. 2d 
        555, 40 Misc. 2d 593 (1963); Worth v Norton, 56 S.C. 56 (1899); 
        Howard v Citizen Bank & Trust Co., 12 App. D.C. 222 (1898); 
        Bartlett v Blair, 68 N.H. 232 (1894).
---------------------------------------------------------------------------

    On Mar. 26, 1953,(5) the House was informed of the 
subpena of members and employees of the Committee on Un-American 
Activities in a civil suit contending that acts committed in the course 
of an investigation of the committee had injured the plaintiffs. The 
House by resolution (H. Res. 190) referred the matter to the Committee 
on the Judiciary to investigate whether the rights and privileges of 
the House, as based upon the immunities from arrest and of speech and 
debate, were being invaded:
---------------------------------------------------------------------------
 5. 99 Cong. Rec. 2356-58, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

        Whereas Harold H. Velde, of Illinois; Donald L. Jackson, of 
    California; Francis E. Walter, of Pennsylvania; Morgan M. Moulder, 
    of Missouri; Clyde Doyle, of California; and James B. Frazier, Jr., 
    of Tennessee, all Representatives in the Congress of the United 
    States; and Louis J. Russell and William Wheeler, employees of the 
    House of Representatives, have been by subpenas commanded to appear 
    on Monday and Tuesday, March 30 and 31, 1953, in the city of Los 
    Angeles, Calif., and to testify and give their depositions in the 
    case of Michael Wilson et al. v Loew's Incorporated et al., an 
    action pending in the Superior Court of the State of California in 
    and for the County of Los Angeles; and
        Whereas the complaint in the aforesaid case of Michael Wilson 
    et al. v Loew's Incorporated et al., lists among the parties 
    defendant therein John S. Wood, Francis E. Walter, Morgan M. 
    Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W. 
    Kearney, Donald L. Jackson, Charles E. Potter, Louis J. Russell, 
    and William Wheeler; and

[[Page 824]]

        Whereas part III of said complaint reads as follows:
        ``At all times herein mentioned defendant John S. Wood was the 
    chairman of the Committee on Un-American Activities, United States 
    House of Representatives; defendants Francis E. Walter, Morgan M. 
    Moulder, Clyde Doyle, James B. Frazier, Harold E. Velde, Barnard W. 
    Kearney, Donald L. Jackson, and Charles E. Potter were members of 
    the said committee; Louis J. Russell was senior investigator of 
    said committee; William Wheeler was an investigator of said 
    committee and 41 Doe, 42 Doe, 43 Doe, 44 Doe, 45 Doe, 46 Doe, 47 
    Doe, 48 Doe, 49 Doe, and 50 Doe were representatives of said 
    committee.
        ``At all times mentioned herein and with respect to the matters 
    hereinafter alleged the defendants named in the preceding paragraph 
    acted both in their official capacity with relation to said House 
    Committee on Un-American Activities and individually in nonofficial 
    capacities''; and
        Whereas part V of said complaint contains an allegation that 
    ``on and prior to March 1951 and continuously thereafter defendants 
    herein and each of them conspired together and agreed with each 
    other to blacklist and to refuse employment to and exclude from 
    employment in the motion picture industry all employees and persons 
    seeking employment in the motion-picture industry who had been or 
    thereafter were subpenaed as witnesses before the Committee on Un-
    American Activities of the House of Representatives . . .''; and
        Whereas article I, section 6, of the Constitution of the United 
    States provides: ``They (the Senators and Representatives) shall in 
    all cases, except treason, felony, and breach of the peace, be 
    privileged from arrest during their attendance at the session of 
    their respective Houses, and in going to and returning from the 
    same . . . and for any speech or debate in either House, they (the 
    Senators and Representatives) shall not be questioned in any other 
    place''; and
        Whereas the service of such process upon Members of this House 
    during their attendance while the Congress is in session might 
    deprive the district which each respectively represents of his 
    voice and vote; and
        Whereas the service of such subpenas and summons upon Members 
    of the House of Representatives who are members of a duly 
    constituted committee of the House of Representatives, and the 
    service of such subpenas and summons upon employees of the House of 
    Representatives serving on the staff of a duly constituted 
    committee of the House of Representatives, will hamper and delay if 
    not completely obstruct the work of such committee, its members, 
    and its staff employees in their official capacities; and
        Whereas it appears by reason of allegations made in the 
    complaint in the said case of Michael Wilson, et al. v Loew's 
    Incorporated, et al., and by reason of the said processes 
    hereinbefore mentioned the rights and privileges of the House of 
    Representatives may be infringed:
        Resolved, That the Committee on the Judiciary, acting as a 
    whole or by subcommittee, is hereby authorized and directed to 
    investigate and consider whether the service of the processes

[[Page 825]]

    aforementioned purporting to command Members, former Members, and 
    employees of this House to appear and testify invades the rights 
    and privileges of the House of Representatives; and whether in the 
    complaint of the aforementioned case of Michael Wilson, et al. v 
    Loew's Incorporated, et al., the allegations that Members, former 
    Members, and employees of the House of Representatives acting in 
    their official capacities as members of a committee of the said 
    House conspired against the plaintiffs in such action to the 
    detriment of such plaintiffs, and any and all other allegations in 
    the said complaint reflecting upon Members, former Members, and 
    employees of this House and their actions in their representative 
    and official capacities, invade the rights and privileges of the 
    House of Representatives. The committee may report at any time on 
    the matters herein committed to it, and until the committee shall 
    report and the House shall grant its consent in the premises the 
    aforementioned Members, former Members, and employees shall refrain 
    from responding to the subpenas or summons served upon them.
        The committee or any subcommittee thereof is authorized to sit 
    and act at such times and places within the United States, whether 
    or not the House is sitting, has recessed, or has adjourned, to 
    hold such hearings, and to require the attendance of such witnesses 
    and the production of such books, papers, and documents, and to 
    take such testimony, as it deems necessary. Subpenas may be issued 
    over the signature of the chairman or by any member designated by 
    him, and may be served by any person designated by such chairman or 
    member. The committee is authorized to inure all expenses necessary 
    for the purposes hereof, including but not limited to expenses of 
    travel and subsistence, employment of counsel and other persons to 
    assist the committee or subcommittee, and if deemed advisable by 
    the committee, to employ counsel to represent any and all of the 
    Members, former Members, and employees of the House of 
    Representatives named as parties defendant in the aforementioned 
    action of Michael Wilson, et al. v Loew's Inc., et al., and such 
    expenses shall be paid from the Contingent Fund of the House of 
    Representatives on vouchers authorized by said committee and signed 
    by the chairman thereof and approved by the Committee on House 
    Administration; and be it further
        Resolved, That a copy of these resolutions be transmitted to 
    the Superior Court of the State of California in and for the county 
    of Los Angeles as a respectful answer to the subpenas of the said 
    court addressed to the aforementioned Members, former Members, and 
    employees of the House of Representatives, or any of them.

    Mr. John W. McCormack, of Massachusetts, stated in reference to the 
resolution that ``for the House to take any other action would be 
fraught with danger, for otherwise there is nothing to stop any number 
of suits being filed against enough Members of the House, and in 
summoning them, to impair the efficiency of the House of 
Representatives or the Senate to act and function as leg

[[Page 826]]

islative bodies.'' He also stated that the fact that the Members and 
employees subpenaed were presently in California in the performance of 
their official duties was immaterial, as they were ``out there on 
official business, and committees of this body are the arms of the 
House of Representatives.'' (6)
---------------------------------------------------------------------------
 6. Id. at p. 2357.
---------------------------------------------------------------------------

Summons to Member as Defendant

Sec. 18.5 The receipt by a Member of a summons to appear before a court 
    for a traffic violation gave rise to a question of privilege of the 
    House, and the House authorized the Member to appear when the House 
    was not in session.(7)
---------------------------------------------------------------------------
 7. For the proposition that the clause granting Congressmen immunity 
        from arrest does not apply to criminal cases and proceedings, 
        see Williamson v U.S., 207 U.S. 425 (1908) (constitutional 
        words ``treason, felony and breach of the peace'' except from 
        the privilege all criminal offenses); Gravel v U.S., 408 U.S. 
        606 (1972) (applies only to arrests in civil suits) (dictum); 
        Long v Ansell, 293 U.S. 76 (1934) (applies only to arrests in 
        civil suits) (dictum); Burton v U.S., 169 U.S. 283 (1905) (no 
        application to felonies) (dictum); U.S. v Wise, 1 Hayward and 
        Hazleton 82, 28 F Cases 16,746a (1848) (no application to 
        breach of the peace); State v Smalls, 11 S.C. 262 (1878) (no 
        application to criminal indictment in state court).
---------------------------------------------------------------------------

    On Apr. 13, 1953,(8) Mr. Clare E. Hoffman, of Michigan, 
stated a question of the privilege of the House when he informed the 
House that he had been summoned to appear before a court in Maryland in 
connection with an alleged traffic violation. Mr. Hoffman stated that 
under the precedents of the House, he was unable to comply with the 
summons without the consent of the House. He then submitted a 
resolution authorizing him to appear when the House was not sitting in 
session and stated that he would at some future time which suited the 
convenience of the court appear and submit to its decision.
---------------------------------------------------------------------------
 8. 99 Cong. Rec. 3013, 3014, 83d Cong. 1st Sess.
---------------------------------------------------------------------------

    The House agreed to the resolution.(9)
---------------------------------------------------------------------------
 9. See Legislative Immunity, Arrest Under Motor Vehicle Code, Limits 
        of the Legislative Immunity, 7 U. Pitt. L. Rev. 150 (Jan. 
        1941).
