[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§ 15. Suspension of Privileges]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1736-1743]
 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 15. Suspension of Privileges

    At one time, the view was expressed by a select committee that the 
House may impose a punishment upon a Member, when appropriate, other 
than censure or expulsion. The select committee in the case of Adam 
Clayton Powell, of New York, stated: (21)
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21. H. Rept. No. 90-27, 90th Cong. 1st Sess., 1967, ``In Re Adam 
        Clayton Powell, Report of Select Committee Pursuant to H. Res. 
        1,'' pp. 28, 29.
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        Although rarely exercised, the power of a House to impose upon 
    a Member punishment other than censure but short of expulsion seems 
    established. There is little reason to believe that the framers of 
    the Constitution, in empowering the Houses of Congress to 
    ``punish'' Members for disorderly behavior and to ``expel'' (art. 
    I, sec. 5, clause 2), intended to limit punishment to censure. 
    Among the other types of punishment for disorderly behavior 
    mentioned in the authorities are fine and suspension.
        In the case of Senators Tillman and McLaurin in 1902, during 
    the 57th Congress, the Senate specifically considered the question 
    of punishment other than expulsion or censure. The case arose on 
    February 22, 1903, and involved a heated altercation on the floor 
    of the Senate in which the two men came to blows. The Senate went 
    immediately into executive session and adopted an order declaring 
    both Senators to be in contempt of the Senate

[[Page 1737]]

    and referring the matter to a committee. The President pro tempore 
    ruled that neither Senator could be recognized while in contempt 
    and subsequently directed the clerk to omit the names of McLaurin 
    and Tillman from a rollcall vote on a pending bill. On February 28, 
    the committee to which the matter had been referred recommended a 
    resolution of censure, which the Senate adopted, stating that 
    Tillman and McLaurin are ``censured for the breach of the 
    privileges and dignity of this body, and from and after the 
    adoption of this resolution the order adjudging them in contempt of 
    the Senate shall be no longer in force and effect'' (2 Hinds, sec. 
    1665). ``The penalty,'' according to ``Senate Election, Expulsion 
    and Censure Cases'' (p. 96), ``thus, was censure and suspension for 
    6 days--which had already elapsed since the assault.''
        In the committee report on the Tillman-McLaurin case, three of 
    the 10 member majority submitted their views on the issue of 
    suspension (2 Hinds, pp. 1141-1142):

            . . . The Senate has not like power with Parliament in 
        punishing citizens for contempt, but it has like power with 
        Parliament in punishing Senators for contempt or for any 
        disorderly behavior or for certain like offenses. Like 
        Parliament, it may imprison or expel a member for offenses. 
        ``The suspension of members from the service of the House is 
        another form of punishment.'' (May's Parliamentary Practice, 
        53.) This author gives instances of suspension in the 
        seventeenth century and shows the frequent suspension of 
        members under a standing order of the House of Commons, passed 
        February 23, 1880.
                         *    *    *    *    *

            The Senate may punish the Senators from South Carolina by 
        fine, by reprimand, by imprisonment, by suspension by a 
        majority vote, or by expulsion with the concurrence of two-
        thirds of its members.
            The offense is well stated in the majority report. It is 
        not grave enough to require expulsion. A reprimand would be too 
        slight a punishment. The Senate by a yea and-nay vote has 
        unanimously resolved that the said Senators are in contempt. A 
        reprimand is in effect only a more formal reiteration of that 
        vote. It is not sufficiently severe upon consideration of the 
        facts.
            A minority of four committee members, however, dissented 
        ``from so much of the report of the committee as asserts the 
        power of the Senate to suspend a Senator and thus deprive a 
        State- of its vote . . .'' (p. 1141).

    However, by its adoption of Rule XLIII clause 10 (22) in 
the 94th Congress, relating to the voluntary abstention from voting and 
from participating in other legislative business by Members who have 
been convicted of certain crimes, the House indicated its more recent 
view that a Member could not be deprived involuntarily of his right to 
vote in the House. The constitutional impediments to such deprivation 
were discussed in the debate on the proposed change in the 
rule.(23)
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22. See House Rules and Manual Sec. 939 (1977) .
23. 23. For discussion of the debate and adoption of the rule, see 
        Sec. 15.1, infra.

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[[Page 1738]]

Grounds; Duration of Suspension

Sec. 15.1 In the 94th Congress, Rule XLIII was amended to provide that 
    a Member convicted of certain crimes ``should refrain from 
    participation in the business of each committee of which he is a 
    member and should refrain from voting on any question at a meeting 
    of the House, or of the Committee of the Whole House.. . .'' The 
    conviction must be by a court of record and the crime must be one 
    for which a sentence of two or more years' imprisonment may be 
    imposed. The period of abstention continues until the Member is 
    subsequently reelected or until juridical or executive proceedings 
    result in the ``reinstatement of the presumption of his 
    innocence.'' (1) 
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 1. Rule XLIII clause 10, House Rules and Manual Sec. 939 (1977).
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    It is clear from the debate on House Resolution 46,(2)  
which added clause 10, to Rule XLIII that the amendment was drafted to 
safeguard the reputation of the House and at the same time preserve the 
right to representation of the constituents of the Member's 
district.(3)  Several of the proponents of the resolution 
emphasized the voluntary nature of compliance with the rule:
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 2. H. Res. 46, 94th Cong. 1st Sess. (1975).
 3. 121 Cong. Rec. 10339-45, 94th Cong. 1st Sess., Apr. 16, 1975.
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        Mr. [John J.] Flynt [Jr., of Georgia]: . . . Let me emphasize 
    that there is nothing mandatory or compulsory in this resolution, 
    nor is there any specific enforcement authority. However, a Member 
    who ignored the stated policy of the House would do so at the risk 
    of subjecting himself to disciplinary procedures provided under 
    House rules. . . .
        Mr. [Melvin] Price [of Illinois]: . . . Let me point out that 
    there is nothing mandatory about the procedure recommended, but it 
    would be expected that any Member affected would abide by the 
    spirit of the policy. The policy could be waived by the House in 
    specific cases if it deemed such a waiver would be in the public 
    interest.

    The reason for the voluntary nature of the Member's abstention was 
also made clear:

        Mr. [Robert C.] Eckhardt [of Texas]: Mr. Speaker, it would seem 
    to me that to deprive a person mandatorily of his right to vote and 
    participate on the committee would be tantamount to making him 
    stand aside altogether in his function as a Congressman and would 
    go to the question of his qualifications to serve. As I understand, 
    the Powell case said that may only be for one of three reasons:

[[Page 1739]]

    The question of age, the question of citizenship, and the question 
    of residency within the State from which a man comes.
        So the only way that there could be a mandatory exclusion from 
    the exercise of the right of any Congressman to represent his 
    district, it would seem to me, would be on a two-thirds vote on 
    expulsion. Would the gentleman agree?
        Mr. Flynt: Mr. Speaker, the gentleman from Texas is correct.
        The committee felt--and I believe that the committee was 
    unanimous--that to have attempted to make this mandatory would have 
    been unconstitutional. It would have deprived the district, which 
    the Member was elected to represent, of representation, as well as 
    invoking a sanction upon the Member himself. . . .
        Mr. Eckhardt: Mr. Speaker, I may say, to a certain extent 
    practically, one may be depriving his district of representation 
    when one tells him that he shall only participate at his peril on 
    grounds of certain further action, which I suppose might include 
    expulsion.

    The constitutionality of depriving a Member's constituents of their 
representative vote troubled several Members:

        Mr. [Don] Edwards [of California]: . . . The measure before us 
    punishes a Member of the House by attempting to deprive that person 
    of the right to vote and participate in the legislative process. 
    However, in our effort to so discipline a Member of Congress, we 
    would effectively disenfranchise the nearly one-half million 
    Americans who elected that person to represent them. Such an action 
    undermines the basic interest of a constituency in their 
    representative government. Any constituency has a legitimate 
    interest in being represented by its preferred choice who possesses 
    all the constitutional eligibility requirements, even though 
    objected to on other grounds, such as his unwillingness to support 
    existing laws.
        A resolution such as this could put the House in the position 
    of encouraging the loss of representation to a constituency whose 
    representative may have committed an act of civil disobedience as a 
    matter of conscience, perhaps even with the approval of that 
    constituency.
        The Constitution has already provided this body with the remedy 
    of expelling a Member for misconduct. Under that clause, the 
    expelled Member may be immediately replaced by another person to 
    represent the constituency. However, under the provisions of the 
    measure before us, there can be no replacement for the punished 
    Member. By the terms of the resolution a constituency would be left 
    without a voice in the House of Representatives for the duration of 
    the Congress or until the disciplined Member was acquitted.
        I feel that the problems raised by this measure go to the heart 
    of our form of government. One of the most fundamental principles 
    of this representative democracy is, in the words of Alexander 
    Hamilton, ``that the people should choose whom they please to 
    govern them.''

    The argument was also advanced that the amendment exceeded the 
powers of the House:

        Mr. [Robert F.] Drinan [of Massachusetts]: Mr. Speaker, on 
    November

[[Page 1740]]

    14, 1973, this House debated and passed a resolution nearly 
    identical to the one now before us. It expressed the sense of this 
    body that Members convicted of a crime punishable by more than 2 
    years in prison should refrain from participating in committee 
    business and from voting on the floor.
        On that occasion, I strongly opposed the resolution because, in 
    my judgment, it exceeded the powers of the House. The Constitution 
    is quite plain on the matter of disciplining Members. Article I, 
    section 5, clause 2 provides:

            Each House may . . . punish its Members for disorderly 
        Behaviour, and, with the Concurrence of two thirds, expel a 
        Member.

        That provision marks the limits of permissible action; no other 
    sanction against an elected Representative is allowed. The 
    resolution we debate today intrudes into the prohibited sphere.
        Under the Constitution, the House may discipline its Members 
    only for disorderly behavior. The sanction of expulsion, while 
    authorized, is reserved for outrageous conduct which effectively 
    disrupts the orderly workings of the legislative process, in short, 
    a serious violation of the Member's oath of office.
        It seems to me that an elected Representative is entitled to 
    the full privileges of the House, unless suspended or expelled. 
    There is no middle ground. We cannot have two classes of Members: 
    one with all the rights, and the other with only partial powers. 
    Such bifurcation in our body is at variance with the constitutional 
    scheme which guides our actions. Yet that is what this resolution, 
    if passed, would accomplish.

    Several other issues were raised during the debate. In response to 
a question concerning the omission of the effect of guilty pleas, Mr. 
Flynt, who had introduced the resolution, stated that a guilty plea was 
identical to a conviction, which was the term employed in the 
resolution. Similarly, Mr. Phillip Burton, of California, expressed 
concern as to whether an indeterminate sentence might result in House 
sanctions. Again, Mr. Flynt responded that it was a purpose of the 
Committee on Standards of Official Conduct to have these sanctions 
``triggered by a conviction on a count in an indictment which amounted 
to a felony.''
    Mr. Flynt further clarified several anticipated consequences of the 
adoption of the amendment:

        During the period of nonvoting, the Member would not be barred 
    from attending sessions of the House or from carrying on normal 
    representational activities, other than voting. His salary and 
    other benefits would continue. . . .
        As the report points out, the committee does not intend to 
    deprive a Member of his right to attend sessions of the House or 
    committees or to preclude him from recording himself ``present'' on 
    a yea-and-nay vote or from responding to a quorum call. A Member 
    thus could protect his attendance record without affecting the 
    outcome of the vote.
        However, I do feel that a Member affected by the rule should 
    not be a

[[Page 1741]]

    party to a live pair, since such a pair could affect the outcome by 
    offsetting the vote of the individual with whom he is paired.
        The House could at any time waive application of the resolution 
    as to specific legislation or issues, thereby restoring the 
    Member's full voting rights in such instances without violating the 
    spirit of the rule.

Sec. 15.2 The House, in the 93d Congress, adopted a resolution 
    expressing the sense of the House that Members convicted of certain 
    crimes should refrain from participation in committee business and 
    from voting in the House until the presumption of innocence is 
    reinstated or until re-elected to the House.

    On Nov. 14, 1973,(4) the House agreed to the following 
resolution:
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 4. 119 Cong. Rec. 36946, 93d Cong. 1st Sess. [H. Res. 700, providing 
        for consideration of H. Res. 128], H. Rept. No. 93-616, 
        Committee on Standards of Official Conduct.
            Parliamentarian's Note: A similar resolution (H. Res. 933, 
        92d Cong.) had been reported in the preceding Congress but had 
        not been called up by the House. That resolution had been 
        prompted by the conviction of former Representative Dowdy for 
        receiving a bribe, but when he voluntarily agreed not to 
        participate in House or committee proceedings, the resolution 
        was not called up in the House. Such resolutions are not 
        privileged under Rule XI clause 22, as they do not recommend 
        action by the House with respect to an individual Member.
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        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 
    re-elected 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.

    In its report on the resolution, the Committee on Standards of 
Official Conduct, stated, in part, at page 2: (5)
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 5. H. Rept. No. 93-616, 93d Cong. 1st Sess., Oct. 31, 1973.
            Parliamentarian's Note: In the debate on the resolution the 
        question was raised that even though it was a sense-of-the-
        House resolution, would it, if followed in a specific case, 
        deprive the voters in the Member's district of a constitutional 
        right to be fully represented? ( See the remarks of 
        Representative Robert F. Drinan [Mass.], 119 Cong. Rec. 36945, 
        93d Cong. 1st Sess.) For an opposite point of view see, Luther 
        Stearns Cushing, Elements of the Law and Practice of 
        Legislative Assemblies in the United States of America, 2d ed. 
        (1866) Sec. 626. Cushing conceded that during suspension, the 
        voters would be deprived of the service of their 
        Representative, but contended that the rights of the voters 
        would be no more infringed by this proceeding than by an 
        exercise of the power to imprison.

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[[Page 1742]]

        To the question of when to act, the committee adopted a policy 
    which essentially is: where an allegation is that one has abused 
    his direct representational or legislative position--or his 
    ``official conduct''--the committee concerns itself forthwith, 
    because there is no other immediate avenue of remedy. But where an 
    allegation involves a possible violation of statutory law, and the 
    committee is assured that the charges are known to and are being 
    expeditiously acted upon by the appropriate authorities, the policy 
    has been to defer action until the judicial proceedings have run 
    their course. This is not to say the committee abandons concern in 
    statutory matters--rather, it feels it normally should not 
    undertake duplicative investigations pending judicial resolution of 
    such cases.
        The implementation of this policy has shown, through 
    experience, only one need for revision. For the House to withhold 
    any action whatever until ultimate disposition of a judicial 
    proceeding, could mean, in effect, the barring of any legislative 
    branch action, since the appeals processes often do, or can be made 
    to, extend over a period greater than the 2-year term of the 
    Member.

        Since Members of Congress are not subject to recall and in the 
    absence of any other means of dealing with such cases short of 
    reprimand, or censure, or expulsion (which would be totally 
    inappropriate until final judicial resolution of the case), public 
    opinion could well interpret inaction as indifference on the part 
    of the House.
        The committee recognizes a very distinguishable link in the 
    chain of due process--that is the point at which the defendant no 
    longer has claim to the presumption of innocence. This point is 
    reached in a criminal prosecution upon conviction by judge or jury. 
    It is to this condition and only to this condition that the 
    proposed resolution reaches.
        The committee reasons that the preservation of public 
    confidence in the legislative process demands that notice be taken 
    of situations of this type.

Voluntary Withdrawal

Sec. 15.3 Following a conviction for bribery and related offenses, a 
    Member refrained from voting on the floor or in committee and from 
    participating in committee business.

    Parliamentarian's Note: Representative John Dowdy, of Texas, was 
convicted under federal statutes of bribery, perjury, and conspiracy on 
Dec. 31, 1971, in a federal district court in Baltimore, Maryland. On 
Jan. 23, 1972, the court sentenced Mr. Dowdy to 18 months in prison and 
a fine of $25,000.
    On June 21, 1972, Mr. Dowdy filed a letter with Speaker Carl

[[Page 1743]]

Albert, of Oklahoma, promising to refrain from voting on the floor or 
in committee and from participating in committee business pending an 
appeal of his conviction.(6)
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 6. See Congressional Quarterly Weekly Report, July 8, 1972, p. 1167.
            See also 6 Cannon's Precedents Sec. Sec. 402, 403, wherein 
        a select committee assumed that a Member indicted under federal 
        law would take no part whatever in any of the business of the 
        House or its committees until final disposition of the case was 
        made.
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