[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 12. Conduct or Discipline of Members, Officers, or Employees]
[B. Nature and Forms of Disciplinary Measures]
[Â§ 13. Expulsion]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1725-1731]
 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 13. Expulsion

    The House has the power to expel a Member under article I, section 
5, clause 2 of the U.S. Constitution. It provides that each House may 
``with the concurrence of two thirds, expel a Member.'' (26)
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26. See House Rules and Manual Sec. Sec. 62 et seq. (1973). See also 
        Powell v McCormack, 395 U.S. 486, 507, footnote 27 (1969).
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    Expulsion is the most severe sanction that can be invoked against a 
Member. The Constitution provides no explicit grounds for expulsion, 
but the courts have set forth certain guidelines that may be applied in 
such cases. Thus, the U.S. Supreme Court has remarked: ``The right to 
expel extends to all cases where the offense is such as [to be] 
inconsistent with the trust and duty of a Member.'' (27)
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27. In re Chapman, 166 U.S. 661, 669 (1897).
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    One judge of the United States Court of Appeals for the District of 
Columbia said in describing the elements of an analogous proceeding: 
``That action was rooted in the judgment of the House as to what was 
necessary or appropriate for it to do to assure the integrity of its 
legislative performance and its institutional acceptability to the 
people at large as a serious and responsible instrument of 
government.'' (28)
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28. Powell v McCormack, 395 F2d 577, concurring opinion of Judge 
        McGovan, p. 607 (C.A., D.C. 1968), reversed on other grounds, 
        395 U.S. 486.
            ``[A Member might be expelled] for that behavior which 
        renders him unfit to do his duties as a Member of the House or 
        that present conditions of mind or body which makes it unsafe 
        or improper for the House to have him in it.'' 2 Hinds' 
        Precedents Sec. 1286.
            In the 63d Congress (1913) the House Committee on Elections 
        No. 1 stated in its report (H. Rept. No. 185; 6 Cannon's 
        Precedents Sec. 78) that the power of the House to expel one of 
        its Members is unlimited--a matter purely of discretion to be 
        exercised by a two-thirds vote from which there is no appeal. 
        However, in 1900, the majority report of the House special 
        committee in the exclusion case of Brigham H. Roberts, Member-
        elect from Utah, 56th Cong., H. Rept. No. 85, Pt. II, 1 Hinds' 
        Precedents Sec. 476 stated: ``1. Neither House of Congress has 
        ever expelled a Member for acts unrelated to him as a Member or 
        inconsistent with his public trust and duty as such. 2. Both 
        Houses have many times refused to expel where the guilt of the 
        Member was apparent; where the refusal to expel was put upon 
        the ground that the House or Senate, as the case might be, had 
        no right to expel for an act unrelated to the Member as such, 
        or because it was committed prior to his election.''

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[[Page 1726]]

    Expulsion is described by Cushing as ``. . . in its very nature 
discretionary, that is, it is impossible to specify beforehand all the 
causes for which a member ought to be expelled and, therefore, in the 
exercise of this power, in each particular case, a legislative body 
should be governed by the strictest justice; for if the violence of 
party should be let loose upon an obnoxious member, and a 
representative of the people discharged of the trust conferred on him 
by his constituent, without good cause, a power of control would thus 
be assumed by the representative body over the constituent, wholly 
inconsistent with the freedom of election.'' (29)
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29. Cushing, Elements of the Law and Practice of Legislative Assemblies 
        in the United States of America, 2d ed., 1866, Sec. 625.
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    Expulsion is generally administered only against Members, i.e., 
those who have been sworn in.(30) However, in one case, at 
the beginning of the Civil War, a Member-elect to the House who did not 
appear and who had taken up arms against the United States, was 
``expelled,'' no one having raised the point that he had not been sworn 
in.(1)
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30. See Powell v McCormack, 395 U.S. 486, 507 (1969) in which the court 
        said: ``Powell was `excluded' from the 90th Congress, i.e., he 
        was not administered the oath of office and was prevented from 
        taking his seat. If he had been allowed to take the oath and 
        subsequently had been required to surrender his seat, the 
        House's action would have constituted an `expulsion'.''
 1. 2 Hinds' Precedents Sec. 1262. For a discussion of the power to 
        expel a Member-elect, see 1 Hinds' Precedents Sec. 476.

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[[Page 1727]]

    The House has expelled only two Members and one Member-elect. All 
instances occurred during the Civil War and in each the person was in 
rebellion against the United States or had taken up arms against 
it.(2)
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 2. 2 Hinds' Precedents Sec. Sec. 1261, 1262.
            The Senate has expelled 15 Senators, most of them for 
        activities related to the Civil War.
            Senator William Blount (Tenn.) was expelled in 1797 on 
        charges of conspiracy. 2 Hinds' Precedents Sec. 1263. For the 
        Civil War cases, see 2 Hinds' Precedents Sec. Sec. 1266-1270.
            In 1877, the Senate annulled its action in expelling a 
        Senator during the Civil War. 2 Hinds' Precedents Sec. 1243.
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    The constitutional power of expulsion has been applied to the 
conduct of Members during their terms of office and not to action taken 
by them prior to their election.(3)
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 3. 6 Cannon's Precedents Sec. Sec. 56, 238; 2 Hinds' Precedents 
        Sec. Sec. 1284-1286, 1288; 1 Hinds' Precedents Sec. 481. See 
        also Powell v McCormack, 395 U.S. 486, 508, 509 (1969).
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    Where a Member of Congress has been convicted of a crime, neither 
the House nor the Senate will normally act to consider expulsion until 
the judicial processes have been exhausted.(4)
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 4. Burton v U.S., 202 U.S. 344 (1906); 2 Hinds' Precedents Sec. 1282; 
        6 Cannon's Precedents Sec. 258.
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    Expulsion proceedings are initiated by the introduction of a 
resolution containing explicit charges (5) and which may 
provide for a committee to investigate and report on the 
matter.(6) While referral has been to the Committee on the 
Judiciary or to a select committee,(7) such a resolution now 
would be referred to the Committee on Standards of Official Conduct 
[see Rule XI clause 19, House Rules and Manual (1973)].
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 5. 2 Hinds' Precedents Sec. Sec. 1261, 1262.
 6. 2 Hinds' Precedents Sec. Sec. 1649, 1650; 3 Hinds' Precedents 
        Sec. 2653; 6 Cannon's Precedents Sec. 400.
 7. 2 Hinds' Precedents Sec. Sec. 1621, 1656; 3 Hinds' Precedents 
        Sec. Sec. 1831, 1844.
            In one recent Congress, however, a resolution to expel was 
        referred to the Committee on the Judiciary, 115 Cong. Rec. 
        41011, 91st Cong. 1st Sess., Dec. 23, 1969 [H. Res. 772].
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    In proceedings for expulsion, the House, having declined to permit 
a trial at the bar, may allow a Member to be heard on his own defense 
by unanimous consent, or through time yielded by the Member calling up 
the resolution, and to present a written defense, but not to appoint 
another Member to speak on his behalf.(8)
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 8. 2 Hinds' Precedents Sec. Sec. 1273, 1275 1286.
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    A resolution of expulsion should be limited in its application to 
one

[[Page 1728]]

Member only, though several may be involved. Separate resolutions (and 
separate reports) should be prepared on each Member.(9)
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 9. 2 Hinds' Precedents Sec. 1275.
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    The expulsion of a Member gives rise to a question of 
privilege.(10) Floor debate is under the hour 
rule.(11)
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10. 3 Hinds' Precedents Sec. 2648; 6 Cannon's Precedents Sec. 236.
11. 8 Cannon's Precedents Sec. 2448.
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    Where a Member resigns while expulsion proceedings against him are 
being considered, the committee may be discharged from further action 
thereon, the proceedings discontinued,(12) or the House may 
adopt a resolution censuring the resigned Member.(13)
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12. 6 Cannon's Precedents Sec. 238; 2 Hinds' Precedents Sec. 1275.
13. 2 Hinds' Precedents Sec. Sec. 1239, 1273.
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    The penalty for conviction under certain statutes applicable to 
Members sometimes includes a prohibition against holding any office of 
honor, trust, or profit under the United States.(14) 
Conviction does not automatically result in loss of office for a 
Member, however; he must be expelled by the House or Senate, as the 
case may be.(15)
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14. See, for example, the statutes listed below:
            18 USC Sec. 201--Soliciting or receiving a bribe or 
        anything of value for or because of any official act performed 
        or to be performed.
            18 USC Sec. 203--Soliciting or receiving any outside 
        compensation for particular services.
            18 USC Sec. 204--Prohibition against practice in Court of 
        Claims by Member.
            18 USC Sec. 2381--Treason.
            18 USC Sec. 2385--Advocating overthrow of government.
            18 USC Sec. 2387--Activities adversely affecting armed 
        forces.
15. U.S. Const. art. I, Sec. 5, clause 2; see Burton v U.S., 202 U.S. 
        344 (1906). It is questionable under the doctrine of Powell v 
        McCormack, 395 U.S. 486 (1969), that such conviction could 
        prevent a person from running for the House or Senate, 
        subsequently.                          -------------------
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In re Hinshaw

Sec. 13.1 A resolution (H. Res. 1392) calling for the expulsion of a 
    Member was reported adversely by the Committee on Standards of 
    Official Conduct where the Member had been convicted of bribery 
    under California law for acts occurring while he served as a county 
    tax assessor and before his election to the House, and where his 
    appeal from the conviction was still pending; the committee found 
    that although the conviction related to Mr. Hinshaw's moral 
    turpitude, it did not relate to his official

[[Page 1729]]

    conduct while a Member of Congress.

    On Sept. 7, 1976, the Committee on Standards of Official Conduct 
submitted its report (H. Rept. 94-1477), In the Matter of 
Representative Andrew J. Hinshaw. The report was referred to the House 
Calendar and ordered printed. Excerpts from the report are set out 
below:

        The Committee on Standards of Official Conduct, to which was 
    referred the resolution (H. Res. 1392), resolving that 
    Representative Andrew J. Hinshaw be expelled from the House of 
    Representatives, having considered the same, reports adversely, 
    thereupon, and recommends that the resolution be not agreed to.

                         Part I.--Summary of Report

        House Resolution 1392 seeks the expulsion of Representative 
    Andrew J. Hinshaw of California from the U.S. House of 
    Representatives pursuant to article I, section 5, clause 2 of the 
    Constitution. Representative Hinshaw has been convicted of bribery 
    under California law for acts occurring while he served as assessor 
    of Orange County, such acts having been committed prior to his 
    election to Congress. An appeal of the conviction is currently 
    pending before the Fourth Appellate District, Court of Appeal, 
    State of California.
        Since his conviction, Representative Hinshaw has complied with 
    House Rule XLIII, paragraph 10 and has not participated in voting 
    either in committee or on the floor of the House.
                         *    *    *    *    *

        The committee believes that the House of Representatives, when 
    considering action against a Member who is currently involved in an 
    active, nondilatory, criminal proceeding against him, such as the 
    Hinshaw case, ordinarily should follow a policy of taking no 
    legislative branch action until the conviction is finally resolved. 
    The committee wishes to express clearly, however, that in this case 
    its conclusion is based entirely on the instant set of facts and in 
    no way implies that different circumstances may not call for a 
    different conclusion.
        Having considered the facts of this particular case and 
    recognizing that Representative Hinshaw has been convicted under a 
    State law that, while reflecting on his moral turpitude, does not 
    relate to his official conduct while a Member of Congress, it is 
    the recommendation of the Committee on Standards of Official 
    Conduct that House Resolution 1392 be not agreed to.
                         *    *    *    *    *

                        Part III.--Committee Action

        On September 1, 1976, the committee met in executive session to 
    consider House Resolution 1392. This report was adopted on that 
    date by a vote of 10 to 2, a quorum being present.

                        Part IV.--Statement of Facts

        Andrew J. Hinshaw is a Member of the House of Representatives 
    representing the 40th District of California. He was first elected 
    to Congress on November 7, 1972, and was sworn in as a Member of 
    the 93d Congress in January 1973. He was reelected in No

[[Page 1730]]

    vember 1974 to the 94th Congress and assumed the seat he now 
    occupies on January 14, 1975. Prior to his first election to 
    Congress, Representative Hinshaw served for 8 years as the elected 
    assessor of Orange County, Calif.
        Public accusations that Representative Hinshaw had taken bribes 
    while assessor of Orange County first appeared in local newspapers 
    in May 1974. However, it was not until May 6, 1975, that a 
    California State grand jury returned an 11-count indictment against 
    Representative Hinshaw charging him with various felonies, all 
    relating to his official conduct as assessor for Orange County. 
    Eight of the eleven counts were dismissed upon motion prior to 
    trial. A jury trial was had on Representative Hinshaw's ``not 
    guilty'' plea to the three remaining counts.
        On January 26, 1976, a jury found Representative Hinshaw guilty 
    of two of the remaining counts and not guilty of the third. The 
    jury found as true that on May 18, 1972, Representative Hinshaw, 
    then the duly elected assessor for Orange County, Calif., and a 
    candidate for Congress in a primary election, solicited and 
    received a campaign contribution of $1,000 for the purpose of 
    influencing his official conduct as assessor of Orange County; and 
    that on December 13, 1972, after Representative Hinshaw's election 
    to Congress but prior to being seated as a Member thereof, he 
    solicited and received certain stereo equipment as consideration 
    for official action theretofore taken by him as assessor of Orange 
    County. The two acts proved constitute the crime of bribery under 
    California law.
        On February 25, 1976, Representative Hinshaw was sentenced to 
    the term provided by law on each count, the terms to run 
    concurrently. California law provides that the crime of bribery is 
    punishable by imprisonment in the State prison for a term of 1 to 
    14 years and, if an elected official be convicted of bribery, the 
    additional penalty of forfeiture of office and permanent 
    disqualification from holding other elective office in California 
    may be imposed. The trial judge refused to impose the forfeiture 
    and disqualification penalty in Representative Hinshaw's case, 
    holding that it applied only to State officials.
        Representative Hinshaw has appealed his conviction, and the 
    appeal is now pending before the Fourth Appellate District, Court 
    of Appeal of California. The time for filing of appellant's brief 
    has been extended until September 12, 1976. No date has yet been 
    set for oral argument. After his conviction, Representative Hinshaw 
    filed for reelection to Congress. In the primary election held on 
    June 8, 1976, Representative Hinshaw was defeated.

                Part V.--Analysis of Precedents and Policies

        The right to expel may be invoked whenever in the judgment of 
    the body a Member's conduct is inconsistent with the public trust 
    and duty of a Member. But, the broad power of the House to expel a 
    Member has been invoked only three times in the history of 
    Congress, all three cases involving treason.
        Historically, when a criminal proceeding is begun against a 
    Member, it has been the custom of the House to

[[Page 1731]]

    defer action until the judicial proceeding is final. The committee 
    recognized the soundness of this course of action when it reported 
    House Resolution 46 (94th Cong. 1st Sess., H. Rept. No. 94-76) 
    adopting rule XLIII, paragraph 10.
        In its report, the committee stated it would act ``where an 
    allegation is that one has abused his direct representational or 
    legislative position--or his 'official conduct' has been 
    questioned''--but where the allegation involves a violation of 
    statutory law, and the charges are being expeditiously acted upon 
    by the appropriate authorities, the policy has been to defer action 
    until the judicial proceedings have run their course.
        A ``crime,'' as defined by statutory law, can cover a broad 
    spectrum of behavior, for which the sanction may vary. Due to the 
    divergence between criminal codes, and the judgmental 
    classification of crimes into misdemeanors and felonies, no clear-
    cut rule can be stated that conviction for a particular crime is a 
    breach of ``official conduct.'' Therefore, rather than specify 
    certain crimes as rendering a Member unfit to serve in the House, 
    the committee believes it necessary to consider each case on facts 
    alone.
        Due process demands that an accused be afforded recognized 
    safeguards which influence the judicial proceedings from its 
    inception through final appeal. Although the presumption of 
    innocence is lost upon conviction, the House could find itself in 
    an extremely untenable position of having punished a Member for an 
    act which legally did not occur if the conviction is reversed or 
    remanded upon appeal.
        Such is the case of Representative Hinshaw. The charges against 
    him stem from acts taken while county assessor, and allege bribery 
    as defined by California statute. The committee, while not taking a 
    position on the merits of this case, concludes that no action 
    should be taken at this time. We cannot recommend that the House 
    risk placing itself in a constitutional dilemma for which there is 
    no apparent solution.
        We further realize that resolution of the appeal may extend 
    beyond the adjournment sine die of the 94th Congress. In fact, no 
    future action may be required since Representative Hinshaw's 
    electorate chose not to renominate him and he has stated, in 
    writing, that he will resign if the appeal goes against him.
        This committee cannot be indifferent to the presence of a 
    convicted person in the House of Representatives; it will not be 
    so. The course of action we recommend will uphold the integrity of 
    the House while affording respect to the rights of the Member 
    accused. We recognize that under another set of circumstances other 
    courses of action may be in order; but, in the matter of 
    Representative Andrew Hinshaw, we believe we have met the challenge 
    and our recommendation is well founded.

    When House Resolution 1392 was called up as privileged on Oct. 1, 
1976, by its sponsor, Mr. Charles E. Wiggins, of California, it was 
laid on the table without debate.