[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§ 14. Exclusion]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1731-1736]
 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 14. Exclusion

    The power of the House to exclude a Member rests upon Article

[[Page 1732]]

I, section 5, clause 1 of the Constitution, which provides: ``Each 
House shall be the judge of the elections, returns, and qualifications 
of its own Members. . . .'' The qualifications referred to are those 
set forth in Article I, section 2, clause 2, of the Constitution, ``No 
person shall be a Representative who shall not have attained to the age 
of twenty-five years, and have been seven years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of that state 
in which he shall be chosen.'' (l6) Neither the Congress nor 
the House can add to these qualifications, nor can a 
state.(17)
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16. Powell v McCormack, 395 U.S. 486 (1969). See also Sec. 12, supra.
17. See Powell v McCormack, 395 U.S. 486 (1969); Hellman v Collier, 217 
        Md. 93, 141 A.2d 908 (1958); Richardson v Hare, 381 Mich. 304, 
        160 N.W. 2d 883 (1968); State ex rel. Chavez v Evans, 29 N. M. 
        578, 446 P.2d 445 (1968). And see H. Rept. No. 90-27, 90th 
        Cong. 1st Sess., ``In Re Adam Clayton Powell, Report of Select 
        Committee Pursuant to H. Res. 1'' (1967) p. 30.
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    A Member-elect may be excluded from the House pending an 
investigation as to his initial and final right to the 
seat.(18) And although a two-thirds vote is required to 
expel a Member, only a majority is required to exclude a Member who has 
been permitted to take the oath of office pending a final determination 
by the House of his right to the seat.(19) The vote 
necessary to exclude on the ground of failure to meet one of the 
constitutional qualifications is a majority of those voting, a quorum 
being present, regardless of whether a final determination by the House 
of a Member's right to a seat has been made.(20) A vote on 
an amendment in the nature of a substitute proposing exclusion is not a 
vote to expel, and therefore does not require a two-thirds vote of the 
Members present.(1)
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18. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess., Jan. 10, 1967 [H. Res. 
        1, relating to the right of Adam Clayton Powell to take the 
        oath].
19. 113 Cong. Rec. 17, 90th Cong. 1st Sess., Jan. 10, 1967.
20. See the ruling by Speaker John W. McCormack (Mass.), 113 Cong. Rec. 
        17, 90th Cong. 1st Sess., Jan. 10, 1967; see also 1 Hinds' 
        Precedents Sec. Sec. 420, 429, 434.
 1. See 113 Cong. Rec. 5020 90th Cong. 1st Sess., Mar. 1, 1967.
            Parliamentarian's Note: In the Powell case the Speaker 
        responded to a parliamentary inquiry as to the vote required on 
        an amendment in the nature of a substitute proposing exclusion, 
        stating that only a majority vote was required to adopt the 
        amendment, but the Speaker was not called upon to rule whether 
        the resolution as so amended would likewise require only a 
        majority vote.
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    A resolution proposing the exclusion of a Member-elect presents

[[Page 1733]]

a question of privilege.(2) Debate thereon is under the hour 
rule.(3) A Member-elect has been permitted by unanimous 
consent to address the House during the debate on the question of 
whether he should be sworn in.(4)
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 2. See 3 Hinds' Precedents Sec. 2594.
 3. See 113 Cong. Rec. 15, 90th Cong. 1st Sess., Jan. 10, 1967.
 4. 113 Cong. Rec. 15, 90th Cong. 1st Sess., Jan. 10, 1967. See also 1 
        Hinds' Precedents Sec. 474.
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    The House has authorized its committee to take testimony in a case 
where the qualifications of a Member were in issue.(5) 
Beginning in the 94th Congress, the Committee on House Administration 
was granted general subpena authority in all matters within its 
jurisdiction. Furthermore, a committee investigating the qualifications 
of a Member-elect may allow his presence and permit suggestions from 
him during the discussion of the plan and scope of the 
inquiry.(6) It may also give him the opportunity to testify 
in his own behalf and to be present and to cross-examine 
witnesses.(7)
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 5. 1 Hinds' Precedents Sec. 427.
 6. 1 Hinds' Precedents Sec. 420.
 7. 1 Hinds' Precedents Sec. Sec. 420, 
        475.                          -------------------
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Exclusion of Adam Clayton Powell

Sec. 14.1 The House adopted a resolution referring to a select 
    committee questions as to the right of a Member-elect to be sworn 
    and to take his seat, permitting him the pay and allowances of the 
    office pending a final determination by the House and requiring the 
    committee to report back to the House within a prescribed 
    time.(8) Subsequently, the House agreed to a resolution 
    excluding him from membership on the ground, among others, that he 
    had wrongfully diverted House funds to his own use. However, the 
    U.S. Supreme Court ruled that a Member-elect can be excluded from 
    the House only for a failure to meet the constitutional 
    qualifications of age, citizenship, and inhabitancy.
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 8. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess., Jan. 10, 1967 [H. Res. 
        1, relating to the right of Adam Clayton Powell (N.Y.) to take 
        his seat].
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    On Mar. 1, 1967, the House agreed to a resolution excluding Member-
elect Adam Clayton Powell, from the House, on the ground, among others, 
that he had wrongfully diverted House funds to his own 
use.(9)
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 9. See H. Rept. No. 90-27, 90th Cong. 1st Sess. (1967), ``In Re Adam 
        Clayton Powell, Report of Select Committee Pursuant to H. Res. 
        1,'' p. 33; see also H. Res. 278, 90th Cong. 1st Sess., 113 
        Cong. Rec. 4997, Mar. 1, 1967. The motion for the previous 
        question on this resolution containing the select committee 
        recommendation was defeated (113 Cong. Rec. 5020), and an 
        amendment in the nature of a substitute excluding the Member-
        elect was proposed and adopted (113 Cong. Rec. 5037, 5038).

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[[Page 1734]]

    On Mar. 9, 1967, Mr. Powell filed suit in the U.S. District Court, 
District of Columbia, asking (inter alia) that the Speaker and other 
defendants be enjoined from enforcing the resolution by which he was 
excluded 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.(10)
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10. 113 Cong. Rec. 6035-42, 6048, 90th Cong. 1st Sess., Mar. 9, 1967. 
        Mr. Powell had been requested to stand aside on the opening day 
        of the Congress. He was not sworn in, but instead a resolution 
        was adopted referring the question of his prima facie and his 
        final right to a seat to a select committee [H. Res. 1, 90th 
        Cong. 1st Sess., Jan. 10, 1967, 113 Cong. Rec. 26, 27]. The 
        House, on Mar. 1, 1967, defeated a motion for the previous 
        question relating to the select committee resolution [H. Res. 
        278] which would have admitted the Member-elect as having met 
        the constitutional qualifications of age, citizenship, and 
        inhabitancy, but would have provided that (1) Mr. Powell be 
        censured, (2) that he be fined $1,000 a month from his salary 
        until $40,000 of misused funds had been paid back, and (3) that 
        his seniority would commence as from the day he took the oath 
        as a Member of the 90th Congress. 113 Cong. Rec. 4998 et seq.
            A point of order that a substitute amendment providing for 
        the exclusion by the House of Member-elect Adam Clayton Powell 
        would forbid the Member-elect from serving in the Senate during 
        the 90th Congress, a power said to be beyond that of the House, 
        and that it would forbid a later voting of the Member-elect if 
        he were elected to fill the vacancy caused by his own 
        exclusion, another power beyond the House, was overruled by the 
        Chair as having been made too late in the proceedings. 113 
        Cong. Rec. 5037, 90th Cong. 1st Sess., Mar. 1, 1967.
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    The action was dismissed by the district court for want of 
jurisdiction and by the court of appeals for lack of 
justiciability.(11) The Supreme Court reviewed the two lower 
court opinions, holding that the courts had jurisdiction, that the 
issue was justiciable, and that
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11. In the suit, Powell v McCormack, 266 F Supp 354 (D.C., D.C. 1967), 
        the district court granted a motion to dismiss for want of 
        jurisdiction. On appeal to the United States Court of Appeals 
        for the District of Columbia, the judgment was affirmed on 
        grounds of lack of justiciability, Powell v McCormack, 395 F2d 
        577 (C.A.D.C. 1968).
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[[Page 1735]]

the power of the House under the U.S. Constitution in judging the 
qualifications of its Members was limited to the qualifications of age, 
citizenship, and inhabitancy, as set forth in article I, section 2, 
clause 2.(12)

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12. Powell v McCormack, 395 U.S. 486 (1969).
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    On May 1, 1967, the Speaker laid before the House a letter from the 
Clerk advising receipt of a certificate showing the election of Mr. 
Powell to fill the vacancy created when the House excluded Mr. Powell 
from membership and declared his seat vacant. Mr. Powell did not appear 
to claim the seat.(13)
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13. In response to a parliamentary inquiry, the Speaker indicated that 
        if Mr. Powell appeared to take the oath and was again 
        challenged, the House would have to determine at that time what 
        action it should take. 113 Cong. Rec. 11298, 90th Cong. 1st 
        Sess., May 1, 1967.
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Effect of Felony Conviction

Sec. 14.2 The Speaker was authorized to administer the oath of office 
    to a Member-elect whose right to a seat in the House was challenged 
    on the ground that he had forfeited his rights as a citizen by 
    reason of conviction of a felony.

    On Mar. 9, 1933, at the convening of the 73d Congress, the Speaker 
(14) was authorized, by resolution,(15) to 
administer the oath of office to a Member-elect whose right to a seat 
in the House was questioned by a Member who asserted that the Member-
elect had forfeited his rights as a citizen by reason of conviction of 
a felony.
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14. Henry T. Rainey (Ill.).
15. 77 Cong. Rec. 139, 73d Cong. 1st Sess. [H. Res. 6].
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    Member-elect Francis H. Shoemaker, of Minnesota, was asked to stand 
aside during the swearing in after a resolution was offered by Mr. 
Albert E. Carter, of California, providing that the prima facie and 
final right to a seat for Mr. Shoemaker be referred to the Committee on 
Elections No. 1.(16)  
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16. 77 Cong. Rec. 71, 73, 73d Cong. 1st Sess.
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    Mr. Shoemaker had been convicted in a federal district court in 
Minnesota in 1930 of an offense involving the mailing of defamatory 
literature, and had been put on probation for five years. After a 
verbal altercation with the judge, he was sentenced to imprisonment for 
a year and a day. He served the sentence in the federal penitentiary in 
Leavenworth, Kansas, prior to his election to the House in 
1932.(17)
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17. Id. at pp. 74, 132, 133, 135.

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[[Page 1736]]

    It was alleged that under the constitution of Minnesota, Mr. 
Shoemaker, after the felony conviction, had become ineligible to vote 
or hold any office. Nevertheless, it was pointed out that he had voted 
in the 1932 election, had run for federal office, and that the state 
could not disqualify him in the latter capacity.(18)
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18. Id. at p. 74.
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    On Mar. 10, 1933, Mr. Paul J. Kvale, of Minnesota, offered an 
amendment in the nature of a substitute providing that the Speaker be 
authorized and directed to administer the oath to Mr. Shoemaker and 
that the question of his final right to a seat be referred to the 
Committee on Elections No. 2. Debate ensued as to the responsibility of 
the House to bar the Member-elect at the door before giving him a 
hearing, as some precedents of the House suggested, or to follow other 
precedents and administer the oath initially and then, at a later date, 
consider his final right to a seat.
    At the conclusion of debate the amendment was adopted on a division 
vote, 230 to 75.(19) The resolution as amended was agreed 
to, and its preamble, which referred to charges against Mr. Shoemaker, 
was stricken by unanimous consent.(20)
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19. Id. at pp. 132-139.
20. Id. at p. 139.
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