[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
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
Ancillary matters dealing primarily with parliamentary procedure,
such as questions of privilege relating to Members,(2) are
treated elsewhere.
---------------------------------------------------------------------------
2. For privilege, see Ch. 11, infra.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
3. See U.S. Const. art. I, Sec. 2, clause 2.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
The Members are also allotted quotas for nomination of persons to
the Merchant Marine Academy, depending on state
population.(20)
---------------------------------------------------------------------------
20. See 46 USC Sec. 1126(b)(1).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
7. 102 Cong. Rec. 14121, 14122, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
8. 102 Cong. Rec. 14557, 14558, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
9. 102 Cong. Rec. 14564, 84th Cong. 2d Sess.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
10. 116 Cong. Rec. 43068, 91st Cong. 2d Sess.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
[[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)
---------------------------------------------------------------------------
12. 116 Cong. Rec. 1077, 91st Cong. 2d Sess.; see also Ch. 12, infra.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
13. 113 Cong. Rec. 6035, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
[[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).