[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 12. Conduct or Discipline of Members, Officers, or Employees]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1697-1698]
 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees


[[Page 1697]]



---------------------------------------------------------------------------
    Commentary and editing by Robert L. Tienken, LL.B.
---------------------------------------------------------------------------

A. Introductory; Particular Kinds of Misconduct

    Sec. 1. In General; Codes of Conduct
    Sec. 2. Committee Functions
    Sec. 3. Violations of Statutes
    Sec. 4. Violations of House Rules
    Sec. 5. Abuse of Mailing or Franking Privileges
    Sec. 6. Absences From the House; Indebtedness
    Sec. 7. Misconduct in Elections or Campaigns
    Sec. 8. Financial Matters; Disclosure Requirements
    Sec. 9. Abuses in Hiring, Employment, and Travel
   Sec. 10. Communications With Federal Agencies
   Sec. 11. Acceptance of Foreign Gifts and Awards

B. Nature and Forms of Disciplinary Measures

   Sec. 12. In General; Penalties
   Sec. 13. Expulsion
   Sec. 14. Exclusion
   Sec. 15. Suspension of Privileges
   Sec. 16. Censure; Reprimand
   Sec. 17. Imposition of Fine
   Sec. 18. Deprivation of Seniority Status

Appendix
                         DESCHLER'S PRECEDENTS



[[Page 1698]]

                          INDEX TO PRECEDENTS
                                     

Alford, Dale, pre-election irregularity by, Sec. 7.2
Apology, effect on censure proceedings, Sec. 16
Apology, requirement of, as discipline, Sec. 12
Arrest, privilege from, Sec. 3.1
Auto-leasing agreements, improprieties in, Sec. 8.3
Campaign literature, unauthorized distribution of, Sec. 7.2
Censure of Member, administration by Speaker, Sec. 16
Censure of Senators, Sec. Sec. 16.2, 16.3
Clerk-hire guidelines, Sec. 9.1
Committee chairmen, disciplinary actions against, Sec. Sec. 12.2-12.4
Conflicts of interest, Sec. 8.4
Corrupt practices laws, violations of, Sec. 7.3
Criminal conduct, Sec. 3.1
Debate on exclusion proceedings, Sec. 14
Debate on expulsion of Member, Sec. 13
Debate on resolution of censure, Sec. 16
Dodd, Thomas J., censure of, Sec. 16.3
Dowdy, John, abstention from House business by, Sec. 15.3
Ethics, code of, Sec. 1
Exclusion, Sec. 14
Expulsion of Member, authority of House, Sec. 13
Expulsion proceedings, initiation of, Sec. 13
Fees, improper, receipt of, Sec. 8.1
Felony conviction, exclusion of Member after, Sec. 14.2
Financial records, negligence in preparing, Sec. 7.1
Fine of Member-elect for acts committed in prior Congress, Sec. 17.1
Hinshaw, Andrew J., expulsion proceedings relating to, Sec. 13.1
Hoffman, Clare E., committee chairman, restrictions on, Sec. 12.4
Immigration bills, abuses in introduction of, Sec. 8.2
Imprisonment of Member, authority of House to direct, Sec. 12
Investments, disclosure of, Sec. 8.4
Long, Edward V., improper fees by, receipt of, Sec. 8.1
McCarthy, Joseph R., censure of, Sec. 16.2
Powell, Adam Clayton
    censure of, Sec. 16.1
    chairman of committee, actions affecting powers as, Sec. Sec. 12.2, 
        12.3
    exclusion from House, Sec. 14.1
    fine, imposition of, Sec. 17.1
    penalties, multiple, Sec. 12.1
    seniority status, deprivation of, Sec. 18.2
    travel funds, misuse of, Sec. Sec. 9.2, 9.3
Privilege from arrest, Sec. 3.1
Relatives, employment of, Sec. 9
Resignation of Member pending expulsion proceedings, Sec. 13
Resolution initiating expulsion proceedings, Sec. 13
Seniority status, deprivation of, for acts committed in prior Congress, 
    Sec. 18.2
Seniority status of committee member, reduction of, Sec. 18.1
Shoemaker, Francis H., felony conviction as affecting right to take 
    oath, Sec. 14.2
Suspension of privileges, Sec. Sec. 15.1, 15.2
Travel funds, misuse of, Sec. Sec. 9.2, 9.3
Vote required to exclude Member, Sec. 14
Vote required to expel Member, Sec. 13
Williams, John Bell, seniority of, procedure in reducing, Sec. 18.1
Withdrawal from participating in voting and from committee business, 
    Sec. 15.3

[[Page 1699]]



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 1. In General; Codes of Conduct



    Prior to the 90th Congress,(1) there was no rule setting 
forth a formal code of conduct for Congressmen. However, in 1967 and 
1968 the rules of the House were amended to (1) make the Committee on 
Standards of Official Conduct a standing committee of the House; (2) 
establish, as a new Rule XLIII, a Code of Official Conduct for Members, 
officers, and employees of the House; (3) require Members, officers, 
and certain key aides to disclose financial interests pursuant to 
procedures outlined in new Rule XLIV.(2)
---------------------------------------------------------------------------
 1. Pre-1936 precedents on the punishment and expulsion of Members may 
        be found at 2 Hinds' Precedents Sec. Sec. 1236-1289 and 6 
        Cannon's Precedents Sec. Sec. 236-239.
            This chapter includes precedents through the 94th Congress, 
        2d Session.
 2. 114 Cong. Rec. 8802, 90th Cong. 2d Sess., Apr. 1, 1968 [H. Res. 
        1099, amending H. Res. 418]; Rule XLIII, Rule XLIV, House Rules 
        and Manual Sec. Sec. 939, 940 (1973).
---------------------------------------------------------------------------

    The Code of Official Conduct requires that each Member, officer, or 
employee conduct himself so as to reflect creditably on the House and 
to adhere to the spirit and letter of the rules of the House and the 
rules of its committees. The code also contains provisions governing 
the receipt of compensation, gifts, and honorariums, as well as the use 
of campaign funds.(3)
---------------------------------------------------------------------------
 3. As used in the Code of Official Conduct, the term ``Member'' 
        includes the Resident Commissioner from Puerto Rico and each 
        Delegate to the House; and the term ``officer or employee of 
        the House of Representatives'' means any individual whose 
        compensation is disbursed by the Clerk of the House of 
        Representatives. Rule XLIII, House Rules and Manual Sec. 939 
        (1973).
---------------------------------------------------------------------------

    The 85th Congress adopted by concurrent resolution a Code of Ethics 
to be adhered to by all government employees, including 
officeholders.(4)
---------------------------------------------------------------------------
 4. 72 Stat. Pt. 2, B12, July 11, 1958. This Code of Ethics is a 
        guideline for those in government.
---------------------------------------------------------------------------

                   Code of Ethics for Government Service

        Any person in Government service should:

[[Page 1700]]

        1. Put loyalty to the highest moral principles and to country 
    above loyalty to persons, party, or Government department.
        2. Uphold the Constitution, laws, and legal regulations of the 
    United States and of all governments therein and never be a party 
    to their evasion.
        3. Give a full day's labor for a full day's pay; giving to the 
    performance of his duties his earnest effort and best thought.
        4. Seek to find and employ more efficient and economical ways 
    of getting tasks accomplished.
        5. Never discriminate unfairly by the dispensing of special 
    favors or privileges to anyone, whether for remuneration, or not; 
    and never accept, for himself or his family, favors or benefits 
    under circumstances which might be construed by reasonable persons 
    as influencing the performance of his governmental duties.
        6. Make no private promises of any kind binding on the duties 
    of office, since a Government employee has no private word which 
    can be binding on public duty.
        7. Engage in no business with the Government, either directly 
    or indirectly, which is inconsistent with the conscientious 
    performance of his governmental duties.
        8. Never use any information coming to him confidentially in 
    the performance of governmental duties as a means for making 
    private profit.
        9. Expose corruption wherever discovered.
        10. Uphold these principles, ever conscious that a public 
    office is a public trust.

    In House Report No. 94-1364, 94th Congress second session, House 
Committee on Standards of Official Conduct, ``In the matter of a 
Complaint against Representative Robert L. F. Sikes,'' July 23, 1976, 
the committee indicated that the Code of Ethics was an expression of 
traditional standards of conduct which continued to be applicable even 
though the code was enacted in the form of a concurrent resolution in 
1958 (pp. 7-8):

        The Committee believes that these standards of conduct 
    traditionally applicable to Members of the House are perhaps best 
    expressed in the Code of Ethics for Government Service embodied in 
    House Concurrent Resolution 175, which was approved on July 11, 
    1958. Although the Code was adopted as a concurrent resolution, 
    and, as such, may have no legally binding effect, the Committee 
    believes the Code of Ethics for Government Service nonetheless 
    remains an expression of the traditional standards of conduct 
    applicable to Members of the House prior both to its adoption and 
    the adoption of the Code of Official Conduct in 1968. As is 
    explained in House Report No. 1208, 85th Congress, 1st Session, 
    August 21, 1957:

            House Concurrent Resolution 175 is essentially a 
        declaration of fundamental principles of conduct that should be 
        observed by all persons in the public service. It spells out in 
        clear and straight forward language long-recognized concepts of 
        the high obligations and responsibilities, as well as the 
        rights and privileges, attendant upon services for our 
        Government. It reaffirms the traditional standard--that those 
        holding public

[[Page 1701]]

        office are not owners of authority but agents of public 
        purpose--concerning which there can be no disagreement and to 
        which all Federal employees unquestionably should adhere. It is 
        not a mandate. It creates no new crime or penalty. Nor does it 
        impose any positive legal requirement for specific acts or 
        omissions. (Emphasis added.)

        Thus, even assuming that House Concurrent Resolution 175 may 
    have ``died'' with the adjournment of the particular Congress in 
    which it was adopted, as one commentator seems to suggest, the 
    traditional standards of ethical conduct which were expressed 
    therein did not.



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 2. Committee Functions

    Prior to the 90th Congress, there was no standing or permanent 
committee in the House to investigate and report on improper conduct of 
Members, officers, and employees. Prior to that time, select temporary 
committees were ordinarily created to consider allegations of improper 
conduct against Members, although in some instances such questions were 
considered by standing committees.(5)
---------------------------------------------------------------------------
 5. For example, House Committee on Military Affairs, 2 Hinds' 
        Precedents Sec. 1274, 41st Cong. (1870); House Committee on the 
        Judiciary, 3 Hinds' Precedents Sec. 2652, 37th Cong. I (1861); 
        House Committee on Elections, 3 Hinds' Precedents Sec. 2653, 
        39th Cong. (1865); Committee on House Administration (misuse of 
        contingency funds), 112 Cong. Rec. 27711, 89th Cong. 2d Sess., 
        Oct. 19, 1966 [H. Res. 1047], and (congressional conflict of 
        interest), 109 Cong. Rec. 4940, 88th Cong. 1st Sess., Mar. 28, 
        1963.
---------------------------------------------------------------------------

    The rules of the House were amended in the 90th Congress to make 
the Committee on Standards of Official Conduct a standing committee of 
the House.(6) In that Congress, the House adopted a 
resolution (7) which provided that measures relating to the 
Code of Official Conduct or to financial disclosure be referred to the 
committee. It also authorized the committee to recommend to the House 
appropriate legislative and administrative actions to establish or 
enforce standards of official conduct for Members, officers, and 
employees; to investigate alleged violations of the Code of Official 
Conduct, or of any applicable law, rule, regulation, or

[[Page 1702]]

other standard of conduct, and, after a notice and hearing, recommend 
to the House, by resolution or otherwise, appropriate action; to report 
to the appropriate federal or state authorities, with approval of the 
House, any substantial evidence of a violation of any applicable law 
disclosed in a committee investigation. The committee was also 
authorized to give advisory opinions respecting current or proposed 
conduct. Thus, in the 91st Congress, second session [116 Cong. Rec. 
1077, Jan. 26, 1970] the Committee on Standards of Official Conduct 
published Advisory Opinion No. 1, on the role of a Member of the House 
of Representatives in communicating with executives and independent 
federal agencies either directly or through the Member's authorized 
employee. See Sec. 10, infra.
---------------------------------------------------------------------------
 6. The House Committee on Standards of Official Conduct was created in 
        the 90th Congress, 113 Cong. Rec. 9448, 90th Cong. 1st Sess., 
        Apr. 13, 1967 [H. Res. 418]; jurisdiction redefined, 114 Cong. 
        Rec. 8802, 90th Cong. 2d Sess., Apr. 3, 1968 [H. Res. 1099, 
        amending H. Res. 418]. Rule X clause 1(s) and Rule XI clause 
        19, House Rules and Manual (1973).
 7. 114 Cong. Rec. 8777 et seq., 90th Cong. 2d Sess., Apr. 3, 1968 [H. 
        Res. 1099, amending H. Res. 418].
---------------------------------------------------------------------------

    Resolutions recommending action by the House as a result of an 
investigation by the committee relating to the official conduct of a 
Member, officer, or employee, were made privileged. For a discussion of 
sanctions which may be invoked against a Member, see Sec. Sec. 12-18, 
infra.

    In 1970, Rule XI was amended to confer upon the Committee on 
Standards of Official Conduct jurisdiction over measures relating to 
(1) lobbying activities affecting the House, and (2) raising, 
reporting, and use of campaign contributions for candidates for the 
House; and the committee was given authority to investigate those 
matters and report its findings to the House.(8)
---------------------------------------------------------------------------
 8. 116 Cong. Rec. 23136-41, 91st Cong. 2d Sess., July 8, 1970 [H. Res. 
        1031].
---------------------------------------------------------------------------

    The Committee on Standards of Official Conduct is authorized, under 
Rule XI clause 19, to issue and publish advisory opinions with respect 
to the general propriety of any current or proposed conduct of a 
Member, officer, or employee of the House, upon request of any such 
person.(9)
---------------------------------------------------------------------------
 9. See, for example, the advisory opinion in Sec. 10, infra.
---------------------------------------------------------------------------

    The Senate, in 1964, created a permanent committee designated as 
the Select Committee on Standards and Conduct to receive complaints and 
investigate allegations of improper conduct which may reflect upon the 
Senate, violations of law, and violations of rules and regulations of 
the Senate.(10) In 1968 the Senate amended its rules to 
preclude certain business activities of its officers and employees, to 
regulate certain aspects of campaign financing, and to require the 
disclosure of Senators' financial interests.(11)
---------------------------------------------------------------------------
10. 110 Cong. Rec. 16938, 88th Cong. 2d Sess., July 24, 1964 [S. Res. 
        338, amended].
11. 114 Cong. Rec. 7406, 90th Cong. 2d Sess., Mar. 22, 1968 [S. Res. 
        266, to provide standards of conduct for Members, officers, and 
        employees of the Senate].
            Parliamentarian's Note: In 1967 (90th Cong. 1st Sess.) the 
        Senate select committee investigated allegations of misuse for 
        personal purposes of campaign and testimonial funds by Senator 
        Thomas J. Dodd (Conn.). It reported a resolution of censure 
        against the Senator which was adopted. See Sec. 16.3, infra.

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

[[Page 1703]]



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 3. Violations of Statutes

    The Constitution provides that a Member is to be privileged from 
arrest during sessions except for ``Treason, Felony, and Breach of the 
Peace.'' (12) However, with respect to the application of 
criminal statutes, the Members of Congress, unless immunized by the 
Speech or Debate Clause of the Constitution,(13) are subject 
to the same penalties under the criminal laws as are all 
citizens.(14) Indeed, the Members are specifically or 
impliedly referred to in a number of penal statutes, the enforcement of 
which rests in the executive and judicial branches. The statutes below 
are cited by way of example:
---------------------------------------------------------------------------
12. U.S. Const. art. I, Sec. 6. Generally see Ch. 7, supra.
13. U.S. Const. art. I, Sec. 6, clause 1. See U.S. v Brewster, 408 U.S. 
        501 (1972); Gravel v U.S., 408 U.S. 606 (1972); Powell v 
        McCormack, 395 U.S. 486 (1969); U.S. v Johnson, 383 U.S. 169 
        (1966); Doe v McMillan, 412 U.S. 306 (1973). See Ch. 7, supra, 
        for immunities generally.
14. See U.S. v Johnson, 337 F2d 180 (C.A. Md., 1964), affirmed 383 U.S. 
        169, certiorari denied, 385 U.S. 846.
---------------------------------------------------------------------------

        2 USC Sec. 441--Failure to file federal campaign financing 
    reports.
        18 USC Sec. 201(c)--Soliciting or receiving a bribe.
        18 USC Sec. 201(g)--Soliciting or receiving anything of value 
    for or because of any official act performed or to be performed.
        18 USC Sec. 203(a)--Soliciting or receiving any outside 
    compensation for particular services.
        18 USC Sec. 204--Practice in the Court of Claims.
        18 USC Sec. 211--Acceptance or solicitation of anything of 
    value for promising to obtain appointive public office for any 
    person.
        18 USC Sec. 287--False, fictitious, or fraudulent claims 
    against the United States.

        18 USC Sec. 371--Conspiracy to commit an offense against the 
    United States.
        18 USC Sec. Sec. 431, 433--Prohibits contracts with the 
    government by Members of Congress, with certain exceptions.
        18 USC Sec. 599--Promise of appointment to office by a 
    candidate.
        18 USC Sec. 600--Promise of employment or other benefit for 
    political activity.
        18 USC Sec. 601--Deprivation of employment or other benefit for 
    political activity.
        18 USC Sec. 602--Solicitation of political contributions from 
    U.S. officers or employees, or persons receiving salary

[[Page 1704]]

    or compensation for services from money derived from the U.S. 
    Treasury.
        18 USC Sec. 612--Publication or distribution of political 
    statements without names of persons and organizations responsible 
    for same.
        18 USC Sec. 613--Solicitation of political contributions from 
    foreign nationals.
        18 USC Sec. 1001--False or fraudulent statements or entries in 
    any matter within the jurisdiction of any department or agency of 
    the U.S.
        31 USC Sec. 231--Liability of persons making false claims 
    against the government.

    The statutes cited above are also expressly or by implication 
applicable in many instances to the officers and employees of the 
House. Again, the enforcement thereof is not left to internal means in 
either House (although each House could impose internal sanctions), but 
rests in the executive and judicial branches.
    The House rules authorize the Committee on Standards of Official 
Conduct to report to the appropriate federal or state authorities, with 
approval of the House, any substantial evidence of a violation of an 
applicable law by a Member, officer, or employee of the House, which 
may have been disclosed in a committee investigation.(15)
---------------------------------------------------------------------------
15. Rule XI clause 19(e), House Rules and Manual Sec. 720 
        (1973).                          -------------------
---------------------------------------------------------------------------

Criminal Conduct; Privilege From Arrest

Sec. 3.1 The privilege of the Member from arrest does not apply to 
    situations where the Member himself is charged with a crime 
    referred to in the Constitution.

    The United States Supreme Court,(16) in construing 
article I, section 6, clause 1, ``they [the Senators and 
Representatives] shall in all cases except treason, felony, and breach 
of the peace, be privileged from arrest . . .'' has declared that the 
terms of the provision exclude from the operation of the privilege all 
criminal offenses. Thus, it may be concluded that the privilege only 
applies in the case of civil arrest.(17)
---------------------------------------------------------------------------
16. See Williamson v United States, 207 U.S. 425 (1908).
17. See Long v Ansell, 293 U.S. 76 (1934).
---------------------------------------------------------------------------

    See also the proceedings on Nov. 17, 1941,(18) wherein 
Mr. Hatton W. Sumners, of Texas, in discussing a resolution granting 
permission of the House to a Member to appear before a grand jury in 
response to a summons, referred to the power of the House to refuse to 
yield to a court summons ``except as the Constitution
---------------------------------------------------------------------------
18. 87 Cong. Rec. 8956, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

[[Page 1705]]

provided with reference to crimes.''

    Similarly, in earlier remarks, Mr. Sumners had stated:

        It is important that the House of Representatives control the 
    matter of the attendance of Members of the House upon the business 
    of the House. It ought not to control, of course, when the Member 
    commits a crime, and it has no power to control.(l9)
---------------------------------------------------------------------------
19. Id. at p. 8954.
            See also H. Rept. No. 30, 45th Cong. 2d Sess., 1878 (House 
        Committee on the Judiciary), and 3 Hinds' Precedents Sec. 2673, 
        as to whether there had been any invasion of the rights and 
        privileges of the House in the alleged arrest and imprisonment 
        of Representative Robert Smalls (S.C.). The report concluded:
            ``Upon principle, therefore, as well as in view of the 
        precedents, your committee are clearly of the opinion that the 
        arrest of Mr. Smalls, upon the charge (of having accepted a 
        bribe while a state officer of South Carolina) and under the 
        circumstances hereinbefore set forth, was in no sense an 
        invasion of any of the rights or privileges of the House of 
        Representatives; and that, so far as any supposed breach of 
        privilege is concerned, his detention by the authorities of 
        South Carolina for an alleged violation of the criminal law of 
        that State was legal and justifiable; and having arrived at 
        that conclusion they have deemed it not only unnecessary but 
        improper for them to make any suggestion here as to what course 
        the House should have pursued had the arrest been a violation 
        of its privileges.''
            See Ch. 7, supra, on arrest and immunity of Members.
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 4. Violations of House Rules

    As shown in the summary below, many of the rules of the House 
contain provisions under which a Member may be disciplined or penalized 
for certain acts or conduct:

                                House Rules

        Rule I clause 2--Speaker shall preserve order and decorum.
        Rule VIII clause 1--Disqualification from voting on floor on 
    question where Member has a direct personal and pecuniary interest.
        Rule XIV clause 1--Obtaining the floor, and method of address 
    (``confine himself to the question under debate, avoiding 
    personality'').
        Rule XIV clause 4--Call to order of Member on his transgressing 
    the rules during sessions.
        Rule XIV clause 5--Words taken down if Member is called to 
    order.
        Rule XIV clause 7--Prohibition on exiting while Speaker is 
    putting the question; prohibition on passing between a Member who 
    has the floor, and the Chair, while the Member is speaking; 
    prohibition against wearing a hat or smoking while on the floor.
        Rule XIV clause 8--Prohibition against introducing persons in 
    the galleries to the House or calling the attention of the House, 
    during a session, to people in the galleries.
        Requiring a Member to withdraw where he has persisted despite 
    re

[[Page 1706]]

    peated calls to order (Jefferson's Manual, see House Rules and 
    Manual Sec. 366 [1973]).
        No criticism of the Senate (Jefferson's Manual, see House Rules 
    and Manual Sec. 372 [1973]), nor personal abuse, innuendo or 
    ridicule of the President (Jefferson's Manual, see House Rules and 
    Manual Sec. 370 [1973]).
        Punishment by House of a Member for things of which the House 
    has cognizance (Jefferson's Manual, see House Rules and Manual 
    Sec. Sec. 303 et seq. [1973]).



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 5. Abuse of Mailing or Franking Privileges

    The House Commission on Congressional Mailing Standards provides 
guidance and assistance on the use of franking privileges by Members. 
The commission is authorized to prescribe regulations governing the 
proper use of the franking privilege.(1)
---------------------------------------------------------------------------
 1. 2 USC Sec. Sec. 501 et seq., Pub. L. No. 93-191, 87 Stat. 742 
        (1973), Pub. L. No. 93-255, 88 Stat. 52 (1974).
            The Select Committee on Standards and Conduct of the Senate 
        performs the same function for the Senate (2 USC Sec. 502).
---------------------------------------------------------------------------

    Complaints respecting alleged misuse of the franking provisions in 
title 39 of the United States Code (2) are considered by the 
commission for the Members, and its decisions on facts are final. If 
the commission finds that a serious and willful violation has occurred 
or is about to occur, it refers the matter to the House Committee on 
Standards of Official Conduct.(3)
---------------------------------------------------------------------------
 2. 39 USC Sec. Sec. 3210-3213(2), 3215, 3218, 3219.
 3. 2 USC Sec. 501(e).
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 6. Absences From the House; Indebtedness

    Congress has enacted statutes (a) directing the Sergeant at Arms of 
the House to deduct from the monthly payment to a Member the amount of 
his salary for each day that he has been absent from the House unless 
such Member assigns as the reason for such absence the illness of 
himself or of some member of his family; (4) (b) directing 
the deduction from the salary of a Member for each day that he 
withdraws without leave from his seat; (~5~) (c) directing 
the deduction by the Sergeant at Arms from any salary or expense money 
due a Member for his delinquent indebtedness to the 
House.(6) 
---------------------------------------------------------------------------
 4. 2 USC Sec. 39 (1856).
 5. 2 USC Sec. 40 (1862).
 6. 2 USC Sec. 40a (1934).
---------------------------------------------------------------------------

    If an employee of the House becomes indebted to the House or to the 
trust fund account in the of

[[Page 1707]]

fice of the Sergeant at Arms, and fails to pay such indebtedness, the 
chairman of the committee or the elected officer of the House having 
jurisdiction of the activity under which indebtedness arose, is 
authorized to certify to the Clerk the amount of the indebtedness, and 
the Clerk is authorized to withhold the amount from any funds which are 
disbursed by him to or on behalf of such employee.(7)
---------------------------------------------------------------------------
 7. 2 USC Sec. 89a (1958).
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 7. Misconduct in Elections or Campaigns

    Elections and election contests are treated comprehensively 
elsewhere in this work.(8) However, it should be pointed out 
here that disputes involving alleged misconduct of a Member may be 
initiated in the House by the defeated candidate pursuant to the 
Federal Contested Elections Act.(9) Such contests may also 
be instituted by means of (a) a protest or memorial filed in the House 
by an elector of the district involved, (b) a protest or memorial filed 
by any other person, or (c) a motion made by a Member of the 
House.(10)
---------------------------------------------------------------------------
 8. See Chs. 8, 9, supra.
 9. 2 USC Sec. Sec. 318 et seq., Pub. L. No. 91-138, 83 Stat. 284 
        (1969). See also Chs. 8, 9, supra.
10. H. Rept. No. 91-569, 91st Cong. 1st Sess., Oct. 14, 1969, ``Federal 
        Contested Elections Act,'' p. 2.
---------------------------------------------------------------------------

    Allegations in election contests pertaining to violations of 
federal and state corrupt practices acts are considered by the 
Committee on House Administration.(11)
---------------------------------------------------------------------------
11. Rule XI, House Rules and Manual Sec. 693 (1973). Prior to the 
        adoption of the Legislative Reorganization Act of 1946, 60 
        Stat. 812, ch. 455, contests were considered by several House 
        elections committees.
---------------------------------------------------------------------------

    Prior to the Supreme Court decision in Powell v McCormack, 395 U.S. 
486 (1969) in which the Court held that qualifications of a Member-
elect other than age, citizenship, and inhabitancy may not be judged by 
the House in connection with the initial or final right to a seat of 
such person, both Houses had adopted the premise that violation of a 
Corrupt Practices Act, federal or state, constituted grounds for 
exclusion of a Member-elect (see Frank L. Smith, of Illinois, ``Senate 
Election, Expulsion and Censure Cases from 1793 to 1972,'' p. 133; Farr 
v McLane, 6 Cannon's Precedents  75; Gill v Catlin, 6 Cannon's 
Precedents Sec. 79). Although such violations are not grounds for 
disqualification, evidence thereof may still be given to appropriate 
prosecuting attorneys for use in an investigation of fraud, misconduct, 
or irregularities affecting election results.

[[Page 1708]]

Negligence in Preparing Financial Records

Sec. 7.1 An elections committee ruled that mere negligence in preparing 
    expenditure accounts to be filed with the Clerk should not, absent 
    fraud, deprive one of his seat in the House when he has received a 
    substantial majority of votes.

    In a report on an election contest in the 78th Congress, the 
Committee on Elections No. 3 ruled that the negligence of the 
contestee, Howard J. McMurray, and his counsel, in preparing 
expenditure accounts to be filed with the Clerk should not, absent 
fraud, deprive the contestee of his seat in the House when he has 
received a substantial majority of votes.(12) The contestant 
had charged that the contestee had received contributions and made 
expenditures in violation of the Federal Corrupt Practices 
Act.(l3)
---------------------------------------------------------------------------
12. 90 Cong. Rec. 962, 78th Cong. 2d Sess., Jan. 31, 1944. H. Rept. No. 
        1032 [H. Res. 426] (contested election case of Lewis D. Thill 
        against Howard J. McMurray, Fifth Congressional District of 
        Wisconsin).
13. H. Rept. No. 1032.
---------------------------------------------------------------------------

    The statement filed by the contestee with the Clerk had been 
prepared by an attorney and the figures contained therein reflected 
contributions and expenditures by two independent campaign committees 
for the contestee. The committees were not required to file the 
accounts under the federal act, and the funds handled by them 
unbeknownst to the contestee were not subject to expenditure 
limitations in the federal act. The contestee actually should have 
filed a federal statement showing no receipts or 
disbursements.(14)
---------------------------------------------------------------------------
14. Id.
---------------------------------------------------------------------------

    The report stated, ``There is no evidence to show that any effort 
was made to conceal any receipts or expenditures'' made on behalf of 
the candidacy of Mr. McMurray. ``Under these circumstances,'' the 
report continued, ``. . . contestee should not be denied his seat in 
the House of Representatives on account of this error made in the 
statement filed by [contestee] with the Clerk of the House of 
Representatives.'' The committee, ``. . . did not find any evidence of 
fraud.'' (15)
---------------------------------------------------------------------------
15. Id.
---------------------------------------------------------------------------

    A resolution dismissing the contest was agreed to by the 
House.(16)
---------------------------------------------------------------------------
16. 90 Cong. Rec. 933, 78th Cong. 2d Sess., Jan. 31, 1944 [H. Res. 
        426].
---------------------------------------------------------------------------

Unauthorized Distribution of Campaign Literature 

Sec. 7.2 A pre-election irregularity such as unauthorized

[[Page 1709]]

    distribution of campaign literature will not be attributed to a 
    particular candidate where he did not participate therein.

    In House Report No. 1172, on the right of Dale Alford, of Arkansas, 
to a seat in the 86th Congress, the Committee on House Administration 
determined that a pre-election irregularity such as unauthorized 
distribution of campaign literature should not be attributed to a 
particular candidate Where he did not participate therein. The 
committee report stated: (17)
---------------------------------------------------------------------------
17. H. Rept. No. 1172, p. 19, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

                             Unsigned Circular

        The subcommittee conducted an intensive investigation of the 
    unsigned pre-election circular used in the campaign. This circular 
    was used in violation of both Arkansas and Federal law. The person 
    responsible for this circular admitted that he used it without the 
    knowledge of either the write-in candidate or his campaign manager. 
    This person was interrogated by the Federal grand jury then sitting 
    at Little Rock and no indictment was brought in.
        The distribution of unsigned campaign material is strongly 
    condemned, but there is no evidence showing that the write-in 
    candidate was even aware of the existence of such material. This is 
    one of the several instances wherein the write-in candidate is 
    sought to be held responsible for an irregularity which occurred, 
    but over which he had no control and in which he did not 
    participate. The investigation revealed many irregularities which 
    could erroneously be attributed to either candidate, but the mere 
    existence of an irregularity in any campaign should not be 
    attributed to a particular candidate where he did not participate 
    therein. The subcommittee felt this to be a sound and equitable 
    rule, and it was followed throughout the investigation with respect 
    to both candidates.

    A resolution holding that Mr. Alford was duly elected was agreed to 
by the House on Sept. 8, 1959.(18)
---------------------------------------------------------------------------
18. 105 Cong. Rec. 18610, 86th Cong. 1st Sess. [H. Res. 380].
---------------------------------------------------------------------------

Violation of Corrupt Practices Act

Sec. 7.3 An elections committee ruled that contestant had not 
    established by a fair preponderance of the evidence that contestee 
    had violated the California Corrupt Practices Act or the Federal 
    Corrupt Practices Act.

    In a report in the 76th Congress, the Committee on Elections No. 2, 
with reference to a contest for a seat from California,(19) 
stat

[[Page 1710]]

ed that the pleadings presented several main issues, namely:
---------------------------------------------------------------------------
19. H. Rept. No. 1783, 76th Cong. 3d Sess., Mar. 14, 1940, on the 
        contested election case of Byron N. Scott, contestant, versus 
        Thomas M. Eaton, contestee, from the 18th District of 
        California.
---------------------------------------------------------------------------

        Did the Contestee [Thomas M. Eaton] violate the Corrupt 
    Practices Act of the State of California?
        Did the Contestee violate the Federal Corrupt Practices Act? 
    Did the violation of either or both acts directly or indirectly 
    deprive the contestant from receiving a majority of the votes cast 
    at [the] election? (20)
---------------------------------------------------------------------------
20. H. Rept. No. 1783.
---------------------------------------------------------------------------

    The committee summarily ruled that the contestant had failed to 
meet the burden of proof and to establish by a fair preponderance of 
the evidence the issues raised.(1)
---------------------------------------------------------------------------
 1. Id.
---------------------------------------------------------------------------

    A resolution declaring that the contestee was elected was reported 
to the House but was not acted upon.(2) Mr. Eaton had been 
sworn in at the convening of the Congress.(3)
---------------------------------------------------------------------------
 2. 86 Cong. Rec. 2885, 76th Cong. 3d Sess., Mar. 14, 1940.
 3. 84 Cong. Rec. 12, 76th Cong. 1st Sess., Jan. 3, 1939.
---------------------------------------------------------------------------

Sec. 7.4 An elections committee admonished a contestee who signed under 
    oath an expenditure statement to be filed with the Clerk when the 
    contestee did not know its contents or the irregularities therein.

    In the 78th Congress, the Committee on Elections No. 3 in a report 
admonished a contestee who signed under oath an expenditure statement 
to be filed with the Clerk of the House when he was not familiar with 
its contents or the irregularities therein.(4) Said the 
committee:
---------------------------------------------------------------------------
 4. 90 Cong. Rec. 962, 78th Cong. 2d Sess., Jan. 31, 1944. H. Rept. No. 
        1032 [H. Res. 426]; (contested election case of Lewis D. Thill 
        against Howard J. McMurray, Fifth Congressional District of 
        Wisconsin). See also Sec. 7.1, supra.
---------------------------------------------------------------------------

        Neither does it (Committee on Elections No. 3) attempt to 
    condone the action of the contestee, Mr. McMurray, in signing under 
    oath the statement filed with the Clerk of the House of 
    Representatives, without being familiar with the contents of the 
    statement or the irregularities which it contained.(5)
---------------------------------------------------------------------------
 5. H. Rept. No. 1032.
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 8. Financial Matters; Disclosure Requirements

    The House rules (Rule XLIV) require the disclosure, each year, of 
certain financial interests by Members, officers, and principal 
assistants. They must file a report disclosing the identity of certain 
business entities in which they have an interest, as well as certain 
professional organizations from which they derive an 
income.(6)
---------------------------------------------------------------------------
 6. Rule XLIV, House Rules and Manual Sec. 940 (1973)

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

[[Page 1711]]

    Rule XLIV of the rules of the House was amended to require 
disclosure of: (1) honorariums received from a single source totaling 
$300 or more, and (2) each creditor to whom was owed any unsecured loan 
or other indebtedness of $10,000 or more which was outstanding for a, 
least 90 days in the preceding calendar year.(7)
---------------------------------------------------------------------------
 7. 116 Cong. Rec. 17012, 91st Cong. 2d Sess., May 26, 1970 [H. Res. 
        796].
            A resolution reported by the Committee on Standards of 
        Official Conduct, amending Rule XLIV to revise the financial 
        disclosure requirements of that rule, is not a privileged 
        resolution under Rule XI clause 22. 116 Cong. Rec. 17012, 91st 
        Cong. 2d Sess., May 26, 1970 [H. Res. 971, providing for 
        consideration of H. Res. 796].
            The loans disclosure provision was included following 
        allegations in 1969 that a member of the House Committee on 
        Banking and Currency had owed banks more than $75,000. See H. 
        Rept. No. 91-938, 91st Cong. 2d Sess., and ``Congress and the 
        Nation'' vol. III, 1969-1972, p. 426, Congressional Quarterly, 
        Inc.
---------------------------------------------------------------------------

    The financial statements required by Rule XLIV must be 
filedannually by Apr. 30.(8)
---------------------------------------------------------------------------
 8. Rule XLIV, House Rules and Manual Sec. 940 
        (1973).                          -------------------
---------------------------------------------------------------------------

Improper Fee

Sec. 8.1 Charges that a Senator had used his position as a subcommittee 
    chairman to attempt to aid a labor leader in avoiding a prison 
    sentence and had received fees for his efforts were investigated in 
    the 90th Congress by a Senate select committee; the committee 
    determined that the payments that had been made were not related to 
    the labor leader or his union.

    In the 90th Congress, the Senate Select Committee on Standards and 
Conduct investigated charges that a Senator--Edward V. Long, of 
Missouri--had used his position as a subcommittee chairman to attempt 
to aid a labor leader in staying out of prison and had accepted fees 
for his efforts from one of the labor leader's lawyers.(~9~) 
Statements appeared in several magazines and newspapers that the 
payments made to the Senator by Morris Shenker, a practicing attorney 
in St. Louis, Missouri, were made to influence the hearings on 
invasions of privacy conducted by the Senate Judiciary Subcommittee on 
Administrative Practice and Procedure, of which the Senator was 
Chairman, for the purpose of assisting James Hoffa of the International 
Teamsters Union.(10)
---------------------------------------------------------------------------
 9. 113 Cong. Rec. 30096-98, 90th Cong. 1st Sess., Oct. 25, 1967.
10. Id. at p. 30096.

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

[[Page 1712]]

    The select committee conducted an investigation and concluded that 
the payments made to the Senator by Mr. Shenker between 1961 and 1967 
were for professional legal services, and that they had no relationship 
to Mr. Hoffa or to the Teamsters Union. The committee also concluded 
that the payments had no connection with the Senator's ``duties or 
activities as Chairman of the Subcommittee on Administrative Practice 
and Procedure, the Subcommittee hearings or Senator Long's duties or 
activities as a Member of the Senate.(11)
---------------------------------------------------------------------------
11. Id. at p. 30098.
---------------------------------------------------------------------------

Abuses in Introducing Immigration Bills

Sec. 8.2 Charges that bribes were paid to Senate employees for the 
    introduction of private immigration bills to help Chinese seamen 
    avoid deportation were investigated by a Senate select committee in 
    the 91st Congress; the committee found no evidence of misconduct by 
    any Senator or Senate employee.

    In the 91st Congress,(12) the Chairman (13) 
of the Senate Select Committee on Standards and Conduct discussed on 
the Senate floor a report of the committee which had been submitted 
that day dealing with an investigation of the introduction of private 
immigration bills in the Senate for the relief of Chinese crewmen 
during the 90th and 91st Congresses.(1~4) Statements had 
been made in the media that some Senators or their aides received gifts 
and campaign contributions for introducing bills to enable Chinese 
ship-jumpers to escape deportation as the result of illegal stays in 
this country.
---------------------------------------------------------------------------
12 116 Cong. Rec. 17361, 17362, 91st Cong. 2d Sess., May 28, 1970.
13. 13. John Stennis (Miss.).
14. 116 Cong. Rec 17360, 91st Cong. 2d Sess., S. Rept. No. 91-911.
---------------------------------------------------------------------------

    The chairman stated that more than 600 such bills had been 
introduced during the two Congresses, a great increase over the average 
number that had been introduced in prior Congresses. He pointed out 
that when the matter had first come to the committee's attention in 
September 1969, he communicated with the majority and minority 
leadership about strict enforcement of procedures for the introduction 
of bills. ``. . . [T]he leadership responded immediately,'' he said, 
``by invoking the practice that for future bills to be introduced, they 
had to have the actual signature and the presence of a sponsoring 
Senator.'' (l5)
---------------------------------------------------------------------------
15. Id. at p. 17362.

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

[[Page 1713]]

    The committee and its staff investigated the more than 600 bills to 
ascertain if any abuses had taken place. The chairman concluded: ``. . 
. I can safely summarize . . . by saying that we found no evidence of 
any misconduct by any Senator or any Senate employee, nor did we 
believe from the information we obtained that there was any reason for 
further proceedings.'' (16)
---------------------------------------------------------------------------
16. Id.
---------------------------------------------------------------------------

Auto-leasing Agreements

Sec. 8.3 A Senate select committee determined that it was improper for 
    a company to make an agreement with a Senate committee for the 
    leasing of cars for the private use of Senators.

    On Aug. 24, 1970, the Chairman (17) of the Senate Select 
Committee on Standards and Conduct reported to the Senate the results 
of the committee's investigation and recommendations respecting the 
leasing by certain Senators of automobiles from an automobile 
manufacturing company under specially favorable terms. The chairman 
declared that one company had made an agreement directly with a Senate 
committee for the leasing of cars for the private use of Senators. A 
Senator receiving a car paid the amount of the lease at a price less 
than that offered the general public. Appropriated funds were not 
used.(18) The chairman said that the leasing arrangements 
were made for promotional purposes by the company, without intent to 
exercise improper influence. He added that the committee had concluded 
that the leasing arrangements with Senators violated no law nor any 
Senate rule,(19~) but declared:
---------------------------------------------------------------------------
17. John Stennis (Miss.).
18. 116 Cong. Rec. 29880, 91st Cong. 2d Sess.
19. Id.
---------------------------------------------------------------------------

        . . . [T]he practice of the one company of making an agreement 
    directly with a Senate committee for the leasing of cars for the 
    private use of Senators clearly is improper. A Senate committee by 
    itself does not have the authority to make such a contract, which 
    in our opinion is void and unenforcible. Although these lease 
    agreements do not bind the Senate or any of its committees, we 
    believe this practice by the committees should be terminated at 
    once.
        After carefully considering the benefits and the implications 
    of the leasing of cars to Senators, our committee makes the 
    following advisory recommendation for the guidance of the various 
    Senators involved: Existing private leases of automobiles to 
    Senators at favorable rates should be terminated at or before the 
    end of the current model year. These leases should not be renewed. 
    In making pri

[[Page 1714]]

    vate agreements in the future for the leasing of automobiles, 
    Senators should not accept any favorable terms and conditions that 
    are available to them only as Senators.(20)
---------------------------------------------------------------------------
20. Id.
---------------------------------------------------------------------------

Investments

Sec. 8.4 The House reprimanded a Member for certain conduct occurring 
    during prior Congresses involving conflicts of interest (in 
    violation of a generally accepted standard of ethical conduct 
    applicable to all government officials but not enacted into 
    permanent law at the time of the violation), as well as failure to 
    make proper financial disclosures in accordance with a House rule 
    then in effect, but declined to punish the Member for other prior 
    conduct under the circumstances of the case.

    On July 29, 1976,(21) the House agreed to a resolution 
adopting the report (H. Rept. No. 94-1364) of the Committee on 
Standards of Official Conduct which reprimanded a Member (1) for 
failing to disclose, in violation of Rule XLIV (requiring financial 
disclosure of Members) his ownership of certain stock; and (2) for his 
investment in a Navy bank while actively promoting its establishment, 
in violation of the Code of Ethics for Government Service. The report 
also declined to punish the Member for his sponsorship of legislation 
in 1961 in which he had a direct financial interest, since an extended 
period of time had elapsed, and the Member had been continually re-
elected by constituents with apparent knowledge of the circumstances.
---------------------------------------------------------------------------
21. See the proceedings relating to H. Res. 1421, 94th Cong. 2d Sess.
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 9. Abuses in Hiring, Employment, and Travel

    The Code of Official Conduct provides that a Member may not retain 
anyone on his clerk-hire allowance who does not perform duties 
commensurate with the compensation he receives.(1)
---------------------------------------------------------------------------
 1. Rule XLIII clause 8, House Rules and Manual Sec. 939 (1973).
---------------------------------------------------------------------------

    By statute, employees of the House may not divide any portion of 
their salaries or compensation with another,(2) nor may they 
sublet part of their duties to another.(3) Violation of 
these provisions is deemed cause for removal from office.(4)
---------------------------------------------------------------------------
 2. 2 USC Sec. 86.
 3. 2 USC Sec. 87.
 4. 2 USC Sec. 90.
            No employee of either House of Congress shall sublet to or 
        hire another to do or perform any part of the duties or work 
        attached to the position to which he was appointed. 2 USC 
        Sec. 101.

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

[[Page 1715]]

    Professional staff members of standing committees may not engage in 
any work other than committee business, and may not be assigned duties 
other than those pertaining to committee business.(5)
---------------------------------------------------------------------------
 5. Rule XI clause 29 (a)(3)(B), House Rules and Manual Sec. 737(a) 
        (1973).
---------------------------------------------------------------------------

    A statute prohibits the employment, appointment, or advancement by 
a public official of a relative to a civilian position in the agency in 
which the official is serving or over which he exercises jurisdiction 
or control.(6) This statute, sometimes called the 
antinepotism law, became effective on Dec. 16, 1967; it has no 
retroactive effect and is inapplicable to those appointed prior 
thereto.(7)
---------------------------------------------------------------------------
 6. 5 USC Sec. 3110, Pub. L. No. 90-206, 81 Stat. 640 (1967).
            ``Public official'' includes a Member of Congress. 
        ``Relative'' means an individual who is related to the public 
        official as father, mother, son, daughter, brother, sister, 
        uncle, aunt, first cousin, nephew, niece, husband, wife, 
        father-in-law, mother-in-law, son-in-law, daughter-in-law, 
        brother-in-law, sister-in-law, stepfather, stepmother, stepson, 
        stepdaughter, stepbrother, stepsister, half brother or half 
        sister. 5 USC Sec. 3110(a).
 7. Pub. L. No. 90-206 Sec. 221(c), 81 Stat. 640 
        (1967).                          -------------------
---------------------------------------------------------------------------

Campaign Activities and Clerk-hire Guidelines

Sec. 9.1 Guidelines have been issued relative to the use of clerical 
    personnel in the campaign activities of Members.

    In 1973, the Committee on Standards of Official Conduct promulgated 
an advisory opinion establishing clerk-hire guidelines. It stated in 
part: (8)
---------------------------------------------------------------------------
 8. 119 Cong. Rec. 23691, 23692, 93d Cong. 1st Sess., July 12, 1973.
---------------------------------------------------------------------------

        This Committee is of the opinion that the funds appropriated 
    for Members' clerk-hire should result only in payment for personal 
    services of individuals, in accordance with the law relating to the 
    employment of relatives, employed on a regular basis, in places as 
    provided by law, for the purpose of performing the duties a Member 
    requires in carrying out his representational functions.
        The Committee emphasizes that this opinion in no way seeks to 
    encourage the establishment of uniform job descriptions or 
    imposition of any rigid work standards on a Member's clerical 
    staff. It does suggest, however, that it is improper to levy, as a 
    condition of employment, any responsibility on any clerk to incur 
    personal expenditures for the primary benefit of the Member or of 
    the Member's congressional office operations. . . .
        The opinion clearly would prohibit any Member from retaining 
    any person from his clerk-hire allowance under ei

[[Page 1716]]

    ther an express or tacit agreement that the salary to be paid him 
    is in lieu of any present or future indebtedness of the Member, any 
    portion of which may be allocable to . . . campaign obligations, or 
    any other nonrepresentational service.
        In a related regard, the Committee feels a statement it made 
    earlier, in responding to a complaint, may be of interest. It 
    states: ``As to the allegation regarding campaign activity by an 
    individual on the clerk-hire rolls of the House, it should be noted 
    that, due to the irregular time frame in which the Congress 
    operates, it is unrealistic to impose conventional work hours and 
    rules on congressional employees. At some times, these employees 
    may work more than double the usual work week--at others, some 
    less. Thus employees are expected to fulfill the clerical work the 
    Member requires during the hours he requires and generally are free 
    at other periods. If, during the periods he is free, he voluntarily 
    engages in campaign activity, there is no bar to this. There will, 
    of course, be differing views as to whether the spirit of this 
    principle is violated, but this Committee expects Members of the 
    House to abide by the general proposition.''

Misusing Travel Funds

Sec. 9.2 A party caucus removed a Member from his office as chairman of 
    a committee based on a report disclosing certain improprieties 
    concerning his travel expenses as well as an abuse of clerk-hiring 
    practices.

    In 1967, a party caucus removed a Member (9) from his 
position as Chairman of the Committee on Education and Labor after a 
subcommittee of the Committee on House Administration had reported 
improprieties in certain of his travel expenses during the 89th 
Congress, and in the clerk-hire status of his wife.(10) 
Subsequent to the report of the subcommittee and prior to the 
organization of the 90th Congress, the Democratic Party Members-elect, 
meeting in caucus, voted to remove him from his office as Chairman of 
the House Committee on Education and Labor.(11)
---------------------------------------------------------------------------
 9. Adam Clayton Powell (N.Y.).
10. H. Rept. No. 2349, 89th Cong. 2d Sess.
11. H. Rept. No. 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 9.3 In an attempt to curb the misuse of travel funds, the 
    cancellation of all airline credit cards which had been issued to a 
    committee was ordered by the Committee on House Administration.

    In September 1966, as the result of protests made by certain 
Members on the Committee on Education and Labor, the Committee on House 
Administration, acting through its Chairman, directed the cancellation 
of all air

[[Page 1717]]

line credit cards which had been issued to the Committee on Education 
and Labor and notified its Chairman (12) that all future 
travel must be specifically approved by the Committee on House 
Administration prior to undertaking the travel.(13)
---------------------------------------------------------------------------
12. Adam Clayton Powell (N.Y.).
13. H. Rept. No. 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    The reason for the action was set forth in a report prepared by a 
select committee in the 90th Congress: (14)
---------------------------------------------------------------------------
14. Id. at p. 1.
---------------------------------------------------------------------------

        During the 89th Congress open and widespread criticism 
    developed with respect to the conduct of Representative Adam 
    Clayton Powell, of New York. This criticism emanated both from 
    within the House of Representatives and the public, and related 
    primarily to Representative Powell's alleged contumacious conduct 
    toward the courts of the State of New York and his alleged official 
    misconduct in the management of his congressional office and his 
    office as chairman of the Committee on Education and Labor. There 
    were charges Representative Powell was misusing travel funds and 
    was continuing to employ his wife on his clerk-hire payroll while 
    she was living in San Juan, P.R., in violation of Public Law 89-90, 
    and apparently performing few if any official duties.



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 10. Communications With Federal Agencies

    Guidelines relative to communications that may properly be made by 
a Member to a federal agency on behalf of a constituent have been 
issued by the Committee on Standards of Official Conduct: 
(15)
---------------------------------------------------------------------------
15. The Chairman (Melvin Price [Ill.]) of the Committee on Standards of 
        Official Conduct inserted in the Congressional Record an 
        advisory opinion, promulgated by that committee pursuant to 
        Rule XI clause 19(e)(4), establishing guidelines for Members 
        and employees in communicating with departments and agencies of 
        the executive branch on constituent matters. 116 Cong. Rec. 
        1077, 1078, 91st Cong. 2d Sess., Jan. 26, 1970 [H. Res. 796].
---------------------------------------------------------------------------

                              Representations

        This Committee is of the opinion that a Member of the House of 
    Representatives, either on his own initiative or at the request of 
    a petitioner, may properly communicate with an Executive or 
    Independent Agency on any matter to:
        Request information or a status report;
        Urge prompt consideration;
        Arrange for interviews or appointments;
        Express judgment;
        Call for reconsideration of an administrative response which he 
    believes is not supported by established law, Federal Regulation or 
    legislative intent;
        Perform any other service of a similar nature in this area 
    compatible with the criteria hereinafter expressed in this Advisory 
    Opinion.

                         Principles To Be Observed

        The overall public interest, naturally, is primary to any 
    individual mat

[[Page 1718]]

    ter and should be so considered. There are also other self-evident 
    standards of official conduct which Members should uphold with 
    regard to these communications. The Committee believes the 
    following to be basic:
        1. A Member's responsibility in this area is to all his 
    constituents equally and should be pursued with diligence 
    irrespective of political or other considerations.
        2. Direct or implied suggestion of either favoritism or 
    reprisal in advance of, or subsequent to, action taken by the 
    agency contacted is unwarranted abuse of the representative role.
        3. A Member should make every effort to assure that 
    representations made in his name by any staff employee conform to 
    his instruction.

                             Clear Limitations

        Attention is invited to United States Code, Title 18, Sec. 
    203(a) which states in part: ``Whoever . . . directly or indirectly 
    receives or agrees to receive, or asks, demands, solicits, or 
    seeks, any compensation for any services rendered or to be rendered 
    either by himself or another--
        (1) at a time when he is a Member of Congress . . . or
        (2) at a time when he is an officer or employee of the United 
    States in the . . . legislative . . . branch of the government . . 
    . in relation to any proceedings, application, request for a ruling 
    or other determination, contract, claim, controversy, charge, 
    accusation, arrest, or other particular matter in which the United 
    States is a party or has a direct and substantial interest, before 
    any department, agency, court-martial, officer, or any civil, 
    military, or naval commission . . .
        Shall be fined not more than $10,000 or imprisoned for not more 
    than two years, or both; and shall be incapable of holding any 
    office of honor, trust, or profit under the United States.''
        The Committee emphasizes that it is not herein interpreting 
    this statute but notes that the law does refer to any compensation, 
    directly, or indirectly, for services by himself or another. In 
    this connection, the Committee suggests the need for caution to 
    prevent the accrual to a Member of any compensation for any such 
    services which may be performed by a law firm in which the Member 
    retains a residual interest.
        It should be noted that the above statute applies to officers 
    and employees of the House of Representatives as well as to 
    Members.

    In 1970, Martin Sweig, who had served as administrative assistant 
to Speaker John W. McCormack, of Massachusetts, until October 1969, was 
acquitted in federal district court in New York of conspiracy in 
connection with certain activities conducted from the Speaker's office. 
Mr. Sweig and Nathan Voloshen had allegedly been engaged in a practice 
whereby Mr. Voloshen, in exchange for the receipt of fees from persons 
with matters before government agencies, promised to exert the 
influence of the Speaker's office in respect to such 
agencies.(16)
---------------------------------------------------------------------------
16. U.S. v Sweig, 316 F Supp 1148 (D.C. S.N.Y. 1969).

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

[[Page 1719]]



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
            A. INTRODUCTORY; PARTICULAR KINDS OF MISCONDUCT
 
Sec. 11. Acceptance of Foreign Gifts and Awards

    The Constitution prohibits any person holding federal office from 
accepting a gift from a foreign state without the consent of the 
Congress.(17) However, Congress has provided by statute for 
employees of the federal government to accept or retain such a gift if 
of minimal value.(18) In addition, an employee may accept a 
gift of more than minimal value when refusal would cause offense or 
embarrassment to the foreign relations of the United States; in that 
case, the gift is deemed to be property of the United States and not of 
the donee.(19)
---------------------------------------------------------------------------
17. U.S. Const. art. I, Sec. 9, clause 8.
18. 5 USC Sec. 7342(c)(1). See also Sec. 515 of Pub. L. No. 95-105 for 
        revision of this statute. The Select Committee on Ethics [See 
        Cong. Rec. (daily ed.), 95th Cong. 1st Sess., May 18, 1977] and 
        the Committee on Standards of Official Conduct have promulgated 
        regulations and advisory opinions applicable to the acceptance 
        of foreign gifts and decorations.
19. 5 USC Sec. 7342(c)(2). ``Employee'' is defined for the purpose of 
        this section to include a Member of Congress and members of his 
        family and household [5 USC  7342(a)(1) (E) and (F)].
---------------------------------------------------------------------------



                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 12. In General; Penalties


    The authority of the House of Representatives over the internal 
discipline of its Members flows from the Constitution, and the 
enforcement of disciplinary proceedings by the House against a Member 
is carried out under its rulemaking power.(20)
---------------------------------------------------------------------------
20. U.S. Const. art. I,  Sec. 5, clause 1 states: ``Each House shall be 
        the Judge of the Elections, Returns, and Qualifications of its 
        own Members. . . .''
            U.S. Const. art. I, Sec. 5, clause 2 provides: ``Each House 
        may determine the Rules of its Proceedings, punish its Members 
        for disorderly Behavior, and, with the Concurrence of two-
        thirds, expel a Member.''
---------------------------------------------------------------------------

    There are several different kinds of disciplinary measures that 
have been invoked by the House against one of its Members. These 
include (1) expulsion, (2) exclusion,(21) (3) censure, (4) 
sus

[[Page 1720]]

pension of voting rights and other privileges, (5) imposition of a 
fine, (6) deprivation of seniority status, and (7) requiring an 
apology.(1)
---------------------------------------------------------------------------
21. Exclusion is apparently no longer a disciplinary procedure to be 
        invoked in cases involving the misconduct of Members but is 
        invoked only for failure to meet qualifications of Members as 
        defined by the Constitution. The United States Supreme Court in 
        1963, in Powell v McCormack, 395 U.S. 486, held that the power 
        of the House to judge the qualifications of its Members (art. 
        I, Sec. 5, clause 1) was limited to the constitutional 
        qualifications of age, citizenship, and inhabitancy (art. I, 
        Sec. 2, clause 2). For further discussion of exclusion, see 
        Sec. 14, infra.
 1. See Sec. Sec. 13 et seq., infra.
---------------------------------------------------------------------------

    Imprisonment is a form of punishment that is theoretically within 
the power of the House to impose, but such action has never been taken 
by the House against a Member.(2)
---------------------------------------------------------------------------
 2. The U.S. Supreme Court has stated, ``[T]he Constitution expressly 
        empowers each House to punish its own Members for disorderly 
        behavior. We see no reason to doubt that this punishment may in 
        a proper case be imprisonment, and that it may be [for] refusal 
        to obey some rule on that subject made by the House for the 
        preservation of order.'' Kilbourn v Thompson, 103 U.S. 168, 
        189, 190 (1880).
---------------------------------------------------------------------------

    Jurisdiction over alleged misconduct rests with the Committee on 
Standards of Official Conduct. The committee is charged with the 
responsibility of investigating alleged violations of the Code of 
Official Conduct by a Member, officer, or employee of the House, or 
violations by such person of any law, rule, regulation, or other 
standard of conduct applicable in the performance of his duties or the 
discharge of his responsibilities. The committee in such cases, after 
notice and hearing, is directed to recommend to the House by resolution 
or otherwise such action as the committee may deem appropriate in the 
circumstances.(3)
---------------------------------------------------------------------------
 3. Rule XI clause 19, House Rules and Manual Sec. 720 (1973).
            The Senate created a Select Committee on Standards and 
        Conduct, 110 Cong. Rec. 16938, 88th Cong. 2d Sess., July 24, 
        1964 [S. Res. 338, amended], and adopted a Code of Conduct, 114 
        Cong. Rec. 7406, 90th Cong. 2d Sess., Mar. 22, 1968 [S. Res. 
        266], Rules XLI, XLII, XLIII, XLIV, Senate Manual. 93d Cong. 
        1st Sess. (1973).
---------------------------------------------------------------------------

    Each elected officer of the House (who is not a Member) with 
supervisory responsibilities is authorized to remove or otherwise 
discipline any employee under his supervision.(4)Clerks to 
Members are subject to removal at any time with or without 
cause.(5)
---------------------------------------------------------------------------
 4. 2 USC Sec. 60-1, 84 Stat. 1190, Pub. L. No. 91-510 (1970). See also 
        2 USC Sec. 85.
 5. 2 USC Sec. 92.                          -------------------
---------------------------------------------------------------------------

Multiple Penalties

Sec. 12.1 A House committee recommended a resolution pro

[[Page 1721]]

    viding for the imposition of multiple forms of punishment on a 
    Member-elect, including censure, fine, and loss of seniority; 
    subsequently the House adopted a resolution providing for a fine 
    and loss of seniority.

    At the commencement of the 91st Congress, the House agreed to a 
resolution (1) authorizing the Speaker to administer the oath to 
Representative-elect Adam Clayton Powell, of New York, but (2) 
providing for a fine of $25,000 to be deducted on a monthly basis from 
his salary, (3) reducing his seniority to that of a first-term 
Congressman (thus eliminating consideration of any prior service in the 
computation of seniority), and (4) specifying that Mr. Powell must take 
the oath before Jan. 15, 1969, or his seat would be declared 
vacant.(6)
---------------------------------------------------------------------------
 6. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res. 
        2].
            Similar recommendations plus a recommendation of censure 
        had been considered and rejected in the previous Congress. See 
        H. Res. 278, 90th Cong. 1st Sess., 113 Cong. Rec. 4997, Mar. 1, 
        1967, for the resolution embodying the recommendations of the 
        select committee pursuant to H. Res. 1. The motion for the 
        previous question on this resolution was defeated (113 Cong. 
        Rec. 5020), and a substitute amendment excluding the Member-
        elect was proposed and adopted (113 Cong. Rec. 5037, 5038).
            With respect to the committee's recommendation, the 
        committee Chairman, Emanuel Celler (N.Y.), stated: ``You will 
        note that we went beyond censure. Never before has a committee 
        devised such punishment short of exclusion which went beyond 
        censure.'' (113 Cong. Rec. 4998).
            In opposing the multiple punishment, Representative John 
        Conyers, Jr. (Mich.) stated: ``A fine and a loss of seniority 
        is a completely unprecedented procedure for the House to use in 
        punishing a Member. There is simply no precedent whatsoever for 
        the House to punish its Members other than by censuring or 
        expelling.'' (113 Cong. Rec. 5007).
---------------------------------------------------------------------------

Disciplinary Actions Against Committee Chairmen

Sec. 12.2 The authority of the chairman of a committee of the House was 
    curtailed by the House through adoption of a resolution that 
    restricted the power of the chairman to provide for funds for 
    investigations by subcommittees of that committee.

    In the 88th Congress, the Chairman (7) of the House 
Committee on Education and Labor was disciplined by the House through 
adoption of a resolution providing that funds for sub
---------------------------------------------------------------------------
 7. Adam Clayton Powell (N.Y.).
---------------------------------------------------------------------------

[[Page 1722]]

committee investigations be made directly available to the 
subcommittees.(8)

---------------------------------------------------------------------------
 8. 109 Cong. Rec. 3525-31, 88th Cong. 1st Sess., Mar. 6, 1963, H. 
        Rept. No. 61 [H. Res. 254].
---------------------------------------------------------------------------

    The chairman of the committee had requested authorization to 
withdraw $697,000 from the contingent fund of the House for expenses of 
committee investigations. However, the authorizing resolution, as 
amended, provided only $200,000, of which $150,000 was made available 
to each of the committee's six subcommittees (at $25,000 
each).(9) The amendment (offered by the Committee on House 
Administration) read:
---------------------------------------------------------------------------
 9. 109 Cong. Rec. 3525, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

        . . . Page 1, line 5, strike out ``$697,000'' and insert 
    ``$200,000''.
        Page 1, line 11, after ``House'' insert a period and strike out 
    all that follows down through and including the period on page 2, 
    line 1 and insert in lieu thereof the following: ``Of such amount 
    $25,000 shall be available for each of six subcommittees of the 
    Committee on Education and Labor, and not to exceed $50,000 shall 
    be available to the Committee on Education and Labor. All amounts 
    authorized to be paid out of the contingent fund by this resolution 
    shall, in the case of each subcommittee, be paid on vouchers 
    authorized and signed by the chairman of the subcommittee, cosigned 
    by the chairman of the committee and approved by the Committee on 
    House Administration; in the case of the committee, such amount 
    shall be paid on vouchers authorized and signed by the chairman of 
    the committee and approved by the Committee on House 
    Administration.''

    There had been alleged abuses in the hiring of committee staff, and 
one of the members of the committee reported to the House that, ``we 
(the members of the Committee on Education and Labor) had a bipartisan 
front in the House Administration Committee to try to control the 
expenditure of these funds.'' (10)
---------------------------------------------------------------------------
10. Id. at p. 3526.
---------------------------------------------------------------------------

    Mr. John M. Ashbrook, of Ohio, a member of the Committee on 
Education and Labor, explained the reason for the action: 
(11)
---------------------------------------------------------------------------
11. Id. at p. 3530.
---------------------------------------------------------------------------

        Mr. Ashbrook: Mr. Speaker, I wish to commend the Committee on 
    House Administration for this action in which it has vindicated the 
    entire membership of this House. Because of the manner in which the 
    affairs of the Committee on Education and Labor have been conducted 
    during the past 2 years, I feel that each Member of this body was 
    in the position of deciding whether or not we should condone and 
    continue the policies which will now be held in close check due to 
    the timely action of this watchdog committee.
        Some will say that the cuts are too deep. I think not. As the 
    gentleman from Georgia [Mr. Landrum] so well put it, it will very 
    definitely mean cutting back on some of the employees whom we never 
    saw, rarely heard of,

[[Page 1723]]

    and little benefited by. It will mean fewer opportunities for 
    lavish spending, fewer trips, and without doubt, less waste of 
    taxpayers' money. The basic work of our committee will be 
    accomplished on the fourth floor suite of the Old House Office 
    Building. It will be accomplished by Members of Congress whose pay 
    is not charged against this committee. If we buckle down and 
    proceed expeditiously, we can do as much or more with less costly 
    expenditure. The effort of the committee members and not the 
    dollars expended will be the true test of accomplishment.

    Mr. Joe D. Waggonner, Jr., of Louisiana, gave further reasons for 
the action taken: (12)
---------------------------------------------------------------------------
12. Id.
---------------------------------------------------------------------------

        Mr. Waggonner: Mr. Speaker, as a member of the House 
    Administration Committee and a member of the Subcommittee on 
    Accounts of that committee, I have consistently opposed the 
    granting of Chairman Powell's budget request for $697,000. I have 
    maintained that his budget should be cut to the bare essential 
    needed for his committee to function because of the unacceptable 
    manner in which he has served in his capacity as chairman. I would 
    advocate even greater cuts in his budget except for the fact that I 
    do not want to cripple the good men who are members of his 
    committee and who have consistently done a good job. With the 
    addition of further restrictions as to how and by whom this money 
    is spent and for what purpose it is spent, I hope we can by this 
    action, restore the faith of the people in this committee and in 
    the Congress. Certainly that is my desire.

Sec. 12.3 The membership of a House committee, in a move to discipline 
    its chairman, amended the rules of the committee so as to transfer 
    authority from the chairman to the membership and the subcommittee 
    chairmen.

    On Sept. 22, 1966, the membership of the House Committee on 
Education and Labor, in a move to discipline Chairman Adam Clayton 
Powell, of New York, amended the rules of the committee so as to 
transfer authority from the chairman to the membership and the 
subcommittee chairmen. A copy of the newly adopted rules was printed in 
the Congressional Record.(13)
---------------------------------------------------------------------------
13. 112 Cong. Rec. 23797, 23798, 89th Cong. 2d Sess., Sept. 26, 1966.
---------------------------------------------------------------------------

    Mr. Glenn Andrews, of Alabama, described the occasion to the House: 
(14)
---------------------------------------------------------------------------
14. 112 Cong. Rec. 23722, 89th Cong. 2d Sess., Sept. 22, 1966.
---------------------------------------------------------------------------

        . . . [A]s a member of the House Education and Labor Committee 
    of this body, I was present at this morning's historic meeting 
    [which was instrumental] in the action which was taken to limit the 
    powers of the chairman of the Education and Labor Committee.

    Mr. John M. Ashbrook, of Ohio, stated to the House reasons set 
forth for the action: (15)
---------------------------------------------------------------------------
15. 112 Cong. Rec. 23308, 89th Cong. 2d Sess., Sept. 20, 1966.

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

[[Page 1724]]

        . . . I for one will vote to strip him [Mr. Powell] of all 
    powers or for any partial limitations on his powers because, on the 
    merits, he has exercised them in such a manner as to bring 
    discredit on the entire House of Representatives. . . .
        . . . [O]ur chairman has been openly accused of 3 number of 
    violations of House Rules. . . . It is rumored that Mr. Powell's 
    wife gave him a power of attorney to sign [her House of 
    Representatives salary] checks. A House rule apparently makes it 
    illegal for Mrs. Powell to be paid for work in Puerto Rico.

Sec. 12.4 The members of a House committee took action against the 
    chairman of that committee by restricting his authority to appoint 
    special subcommittees.

    In the 83d Congress, first session,(16) during debate on 
a resolution (17) relating to expenditures by the House 
Committee on Government Operations, mention was made of the fact that 
the committee had recently disciplined its chairman (18) by 
withdrawing from him authority to appoint special subcommittees, a 
blanket authority which it had granted to him at the beginning of the 
session.(19) The chairman had created some 12 or 13 special 
subcommittees, and it was alleged that ``these subcommittees were 
undertaking to operate outside the jurisdiction of the committee and 
there was a suggestion made that they were infringing on the 
jurisdiction of the regularly established subcommittees.'' 
(20) It was also alleged that the chairman had not consulted 
with the ranking minority member or the committee membership in 
creating the subcommittees, and that he appointed some minority members 
to the special subcommittees without consulting the Democratic 
(minority) members of the committee.(21)
---------------------------------------------------------------------------
16. 99 Cong. Rec. 10360-63, July 29, 1953.
17. H. Res. 339, amending H. Res. 150, 83d Cong. 1st Sess. [H. Rept. 
        No. 1020].
18. Clare Hoffman, of Michigan.
19. 99 Cong. Rec. 10362, remarks of Mr. Charles Halleck, of Indiana.
20. Id.
21. 99 Cong. Rec. 10362, remarks of Mr. John McCormack, of 
        Massachusetts.
---------------------------------------------------------------------------

    The committee membership, in July 1953, reacquired the power to 
authorize special subcommittees. The committee rules were changed to 
provide that subcommittees could be created upon motion of the chairman 
but subject to the approval of the committee.(22)
---------------------------------------------------------------------------
22. 99 Cong. Rec. 10362, remarks of Mr. Charles Halleck, of Indiana.
---------------------------------------------------------------------------

    In addition, the Committee on House Administration reported out a 
resolution (H. Res. 339),

[[Page 1725]]

after a hearing on July 22, 1953, at which all members of the Committee 
on Government Operations were invited to be present. The resolution was 
declared to be ``. . . a solution of a situation which was described as 
intolerable by a considerable number of the members of the Committee on 
Government Operations.'' (23)
---------------------------------------------------------------------------
23. 99 Cong. Rec. 10360, remarks of Mr. Karl M. LeCompte, of Iowa.
---------------------------------------------------------------------------

    The resolution allotted specific funds to all but one of the 
regular subcommittees, to be drawn on the voucher of the subcommittee 
chairman, and allotted the remainder for committee expenses, expenses 
of special subcommittees and the expenses of one regular 
subcommittee.(24) (Note: Under H. Res. 150, which was 
amended by H. Res. 339, provision had been made for having all vouchers 
signed by the committee chairman.) (25)
---------------------------------------------------------------------------
24. 99 Cong. Rec. 10360, H. Res. 339.
25. Mr. Hoffman had raised a question of personal privilege and had 
        addressed the matter prior to House consideration of H. Res. 
        339. See 99 Cong. Rec. 10351-59, July 29, 1953.
---------------------------------------------------------------------------


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

    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)
---------------------------------------------------------------------------
27. In re Chapman, 166 U.S. 661, 669 (1897).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.''

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

[[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)
---------------------------------------------------------------------------
29. Cushing, Elements of the Law and Practice of Legislative Assemblies 
        in the United States of America, 2d ed., 1866, Sec. 625.
---------------------------------------------------------------------------

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

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

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

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

    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)
---------------------------------------------------------------------------
 4. Burton v U.S., 202 U.S. 344 (1906); 2 Hinds' Precedents Sec. 1282; 
        6 Cannon's Precedents Sec. 258.
---------------------------------------------------------------------------

    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)].
---------------------------------------------------------------------------
 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].
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 8. 2 Hinds' Precedents Sec. Sec. 1273, 1275 1286.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 9. 2 Hinds' Precedents Sec. 1275.
---------------------------------------------------------------------------

    The expulsion of a Member gives rise to a question of 
privilege.(10) Floor debate is under the hour 
rule.(11)
---------------------------------------------------------------------------
10. 3 Hinds' Precedents Sec. 2648; 6 Cannon's Precedents Sec. 236.
11. 8 Cannon's Precedents Sec. 2448.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
12. 6 Cannon's Precedents Sec. 238; 2 Hinds' Precedents Sec. 1275.
13. 2 Hinds' Precedents Sec. Sec. 1239, 1273.
---------------------------------------------------------------------------

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

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.



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

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

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

    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)
---------------------------------------------------------------------------
 5. 1 Hinds' Precedents Sec. 427.
 6. 1 Hinds' Precedents Sec. 420.
 7. 1 Hinds' Precedents Sec. Sec. 420, 
        475.                          -------------------
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
 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].
---------------------------------------------------------------------------

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

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

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

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

[[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)

---------------------------------------------------------------------------
12. Powell v McCormack, 395 U.S. 486 (1969).
---------------------------------------------------------------------------

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

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.
---------------------------------------------------------------------------
14. Henry T. Rainey (Ill.).
15. 77 Cong. Rec. 139, 73d Cong. 1st Sess. [H. Res. 6].
---------------------------------------------------------------------------

    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)  
---------------------------------------------------------------------------
16. 77 Cong. Rec. 71, 73, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
17. Id. at pp. 74, 132, 133, 135.

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

[[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)
---------------------------------------------------------------------------
18. Id. at p. 74.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
19. Id. at pp. 132-139.
20. Id. at p. 139.
---------------------------------------------------------------------------



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

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

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

[[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) 
---------------------------------------------------------------------------
 1. Rule XLIII clause 10, House Rules and Manual Sec. 939 (1977).
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
 2. H. Res. 46, 94th Cong. 1st Sess. (1975).
 3. 121 Cong. Rec. 10339-45, 94th Cong. 1st Sess., Apr. 16, 1975.
---------------------------------------------------------------------------

        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:
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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

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

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


                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 16. Censure; Reprimand

    In the House, the underlying concept governing the censure of a 
Member for misconduct is that of breach of the rights and privileges of 
the House.(7) As indicated in a report of a select committee 
of the House,(8) the power of each House to censure its 
Members ``for disorderly behavior'' is found in article I section 5 
clause 2 of the U.S. Constitution. It is discretionary in character, 
and upon a resolution for censure of a Member for misconduct each 
individual Member considering the matter is at liberty to act on his 
sound discretion and vote according to the dictates of his own judgment 
and conscience.
---------------------------------------------------------------------------
 7. 2 Hinds' Precedents Sec. 1644.
 8. H. Rept. No. 90-27, 90th Cong. 1st Sess., Feb. 23, 1967, ``In Re 
        Adam Clayton Powell, Report of the Select Committee Pursuant to 
        H. Res. 1,'' pp. 24-30.
---------------------------------------------------------------------------

    The conduct for which censure may be imposed is not limited to acts 
relating to the Member's official duties. See In re Chapman (166 U.S. 
661 [1897]). The committee considering censure of Senator Joseph 
McCarthy stated (S. Rept. No. 2508, 83d Cong., p. 22): ``It seems clear 
that if a Senator should be guilty of reprehensible conduct unconnected 
with his official duties and position, but which conduct brings the 
Senate into disrepute, the Senate has the power to censure.''
    During its history, through the 94th Congress, the House of 
Representatives has censured 17 Members and one Delegate and has 
reprimanded one Member in the 94th Congress. All but one of the 
instances of censure occurred during the 19th century, 13 Members being 
censured between 1864 and 1875. The last censure in the House was 
imposed in 1921. In the Senate, there are four instances of censure, 
including the censure of Senator Joseph McCarthy in 1954.

    Most cases of censure have involved the use of unparliamentary 
language, assaults upon a Mem

[[Page 1744]]

ber or insults to the House by introduction of offensive 
resolutions,~(9) but in five cases in the House and one in 
the Senate censure was based on corrupt acts by a Member, and in 
another Senate case censure was based upon noncooperation with and 
abuse of Senate committees.(10)
---------------------------------------------------------------------------
 9. See 2 Hinds' Precedents Sec. Sec. 1246-1249, 1251, 1256, 1305, 
        1621, 1656; 6 Cannon's Precedents Sec. 236.
10. See 2 Hinds' Precedents Sec. Sec. 1239, 1273, 1274, 1286; 6 
        Cannon's Precedents Sec. 239; ``Senate Election, Expulsion and 
        Censure Cases,'' S. Doc. No. 71, 87th Cong., pp. 125-27, 152-
        54.
            In 1870, during the 41st Congress, the House censured John 
        T. DeWeese, B. F. Whittemore, and Roderick R. Butler for the 
        sale of appointments to the U. S. Military and Naval Academies. 
        In Butler's case, the Member had appointed to the Military 
        Academy a person not a resident of his district and 
        subsequently received a political contribution from the cadet's 
        father. Censure of DeWeese and Whittemore was voted 
        notwithstanding that each had previously resigned. A resolution 
        to expel Butler was defeated upon failure to obtain a two-
        thirds vote, whereupon a resolution of censure was voted in 
        which the House ``declare[d] its condemnation'' of his conduct, 
        which it characterized as ``an unauthorized and dangerous 
        practice'' (2 Hinds' Precedents Sec. Sec. 1239, 1273, 1274).
            In 1929 Senator Hiram Bingham (Conn.) was censured for 
        having placed on the Senate payroll, and used as a consultant 
        on a pending tariff bill, one Charles L. Eyanson, who was 
        simultaneously in the employ of the Manufacturers Association 
        of Connecticut. The Senate adopted a resolution of censure 
        providing that Senator Bingham's conduct regarding Eyanson 
        ``while not the result of corrupt motives on the part of the 
        Senator from Connecticut, is contrary to good morals and 
        senatorial ethics and tends to bring the Senate into dishonor 
        and disrepute, and such conduct is hereby condemned.'' 6 
        Cannon's Precedents Sec. 239.
---------------------------------------------------------------------------

    In 1873, during the 42d Congress, a special investigating committee 
was appointed to inquire into charges that Representatives Oakes Ames 
and James Brooks had been bribed in connection with the Credit Mobilier 
Co. and the Union Pacific Railroad.(11) Al

[[Page 1745]]

though the committee recommended that both Members be expelled, the 
House adopted substitute censure resolutions in which it ``absolutely 
condemn[ed]'' the conduct of Ames and Brooks (2 Hinds' Precedents 
Sec. 1286).
---------------------------------------------------------------------------
11. The committee reported that Representative Oakes Ames ``has been 
        guilty of selling to Members of Congress shares of stock in the 
        Credit Mobilier of America for prices much below the true value 
        of such stock, with intent thereby to influence the votes and 
        decisions of such Members in matters to be brought before 
        Congress for action.'' With regard to Representative James 
        Brooks, the committee found that he ``did procure the Credit 
        Mobilier Co. to issue and deliver to Charles H. Neilson, for 
        the use and benefit of said Brooks, 50 shares of the stock of 
        said company at a price much below its real value, well knowing 
        that the same was so issued and delivered with intent to 
        influence the votes and decisions of said Brooks as a Member of 
        the House.''
---------------------------------------------------------------------------

    Although there has been a divergence of views concerning the power 
of a House to expel a Member for acts committed during a preceding 
Congress, the right of a House to censure a Member for such prior acts 
is supported by clear precedent in both Houses of Congress--namely, the 
case of Ames and Brooks in the House of Representatives and the case of 
Senator McCarthy in the Senate. In Ames and Brooks the acts for which 
censure was voted occurred more than five years prior to censure and 
two congressional elections had intervened.
    Thus, the broad power of the House to censure Members extends to 
acts occurring during a prior Congress. Whether such powers should be 
invoked in such circumstances is a matter committed to the discretion 
and judgment of the House upon consideration of the nature of the prior 
acts, whether they were known to the electorate at the previous 
election and to the prior House, and the extent to which they directly 
involve the authority, integrity, dignity, or reputation of the 
House.(12)
---------------------------------------------------------------------------
12. H. Rept. No. 90-27, 90th Cong. 1st Sess., Feb. 23, 1967. See also 
        Sec. 8.4, supra.
---------------------------------------------------------------------------

    Censure, like other forms of discipline except expulsion, is by a 
majority of those voting, a quorum being present. (6 Cannon's 
Precedents Sec. 236.) The House itself must order the censure. The 
Speaker cannot, of his own authority, censure a Member.(13)
---------------------------------------------------------------------------
13. 2 Hinds' Precedents Sec. Sec. 1344, 1345; 6 Cannon's Precedents 
        Sec. 237.
---------------------------------------------------------------------------

    A censure resolution may call for direct and immediate action by 
the House; (14) or it may recommend that a committee be 
appointed to investigate and report to the House.~l5~ A 
House select committee may recommend censure of a Member along with 
other forms of punishment in response to a resolution to investigate 
and recommend as to the initial and final right to a 
seat.(16)
---------------------------------------------------------------------------
14. 2 Hinds' Precedents Sec. Sec. 1246-1251, 1254-1258; 6 Cannon's 
        Precedents Sec. Sec. 236, 239.
15. 2 Hinds' Precedents Sec. Sec. 1649-1651, 1655 1656.
16. 113 Cong. Rec. 4997, 90th Cong. 1st Sess., Mar. 1, 1967; see 113 
        Cong. Rec. 24, 26, 27, 90th Cong. 1st Sess., Jan. 10, 1967.

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

[[Page 1746]]

    Floor debate on a resolution of censure is under the hour 
rule.(17) The House has permitted the Member to be heard in 
debate as a matter of course without permission being asked or 
given,(18) or by unanimous consent.(19) And the 
Member controlling debate under the hour rule can yield time to the 
Member being censured. In one instance, after a Member had explained, 
the House reconsidered its vote of censure and reversed 
it.(20) In some situations where Members have apologized 
following the initiation of censure proceedings, the House has accepted 
the apology and terminated the proceedings.(2~1)
---------------------------------------------------------------------------
17. See 5 Hinds' Precedents Sec. 4990.
18. 2 Hinds' Precedents Sec. Sec. 1246, 1253.
19. 2 Hinds' Precedents Sec. 1656.
20. 2 Hinds' Precedents Sec. 1653.
21. See, for instance, 2 Hinds' Precedents Sec. Sec. 1250, 1257, 1258, 
        1652; 6 Cannon's Precedents Sec. 7006.
---------------------------------------------------------------------------

    After the House has ordered censure, it is normally administered by 
the Speaker to the Member at the bar of the House.(22)
---------------------------------------------------------------------------
22. See 2 Hinds' Precedents Sec. Sec. 1251, 1259; 6 Cannon's Precedents 
        Sec. 236.
---------------------------------------------------------------------------

    The House has on occasion made a distinction between censure and 
reprimand, the latter being a somewhat lesser punitive measure than 
censure. A censure is administered by the Speaker to the Member at the 
bar of the House, whereas a reprimand is administered to the Member 
``standing in his place'' (23) or merely by way of the 
adoption of a committee report. Thus in 1976,(24) the House 
administered a reprimand to Mr. Robert L. F. Sikes, of Florida, by 
adopting by a vote of 381 yeas to 3 nays a resolution (H. Res. 1421) 
which provided that the House adopt the report of the Committee on 
Standards of Official Conduct on the investigation of a complaint 
against Mr. Sikes. The Speaker administered no oral reprimand. The 
report (1) declared that (a) failure of Mr. Sikes to report 
certain stockholdngs as required by House Rule XLIV was deserving of a 
reprimand, and (b) that the investment by him in the stock of a bank at 
a naval base in Florida and activities in promoting its establishment 
was deserving of a reprimand. The report provided that in each 
instance, ``the adoption of this report by the House shall constitute 
such reprimand.'' (2)
---------------------------------------------------------------------------
23. Luther Sterns Cushing, Elements of the Law and Practice of 
        Legislative Assemblies in the United States of America, 2d ed. 
        (1866), Sec. 682.
24. Cong. Rec. (daily ed.), 94th Cong. 2d Sess., July 29, 1976.
 1. H. Rept. No. 94-1364, 94th Cong. 2d Sess., July 23. 1976.
 2. Id. at p. 4.

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

[[Page 1747]]

Censure of Adam Clayton Powell

Sec. 16.1 A House select committee recommended censure, along with 
    other penalties, against a Member-elect.

    On Mar. 1, 1967,(3) the House considered a resolution 
censuring Adam Clayton Powell, of New York, for, inter alia, ignoring 
the processes and authority of the New York state courts and for 
improper use of government funds. The resolution provided:
---------------------------------------------------------------------------
 3. H. Res. 278, 113 Cong. Rec. 4997, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        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

[[Page 1748]]

    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.

    The House voted down the motion for the previous question on the 
resolution and substituted an amendment to exclude, which was 
adopted.(4)
---------------------------------------------------------------------------
 4. 113 Cong. Rec. 5020, 5037, 90th Cong. 1st Sess., Mar. 1, 1967. See 
        also Sec. 14.1, supra.
---------------------------------------------------------------------------

Censure of Joseph R. McCarthy

Sec. 16.2 The Senate, by resolution reported by a select committee, 
    censured a Senator for his noncooperation with and abuse of certain 
    Senate committees during an investigation of his conduct as a 
    Senator.

    In 1951, during the 82d Congress, a resolution had been introduced 
calling for an investigation to determine whether expulsion proceedings 
should be instituted against Senator Joseph McCarthy, of Wisconsin, by 
reason, inter alia, of his activities in the 1950 Maryland senatorial 
election; the resolution was referred to the Subcommittee on Privileges 
and Elections, whose Chairman was Senator Guy M. Gillette, of Iowa. 
Senator McCarthy rejected invitations to attend the hearings of the 
Gillette subcommittee, termed the charges against him a Communist 
smear, and stated that the hearings were designed to expel him ``for 
having exposed Communists in Government.'' In 1954, during the 
succeeding 83d Congress, a censure resolution against Senator McCarthy 
was introduced and referred to a select committee headed by Senator 
Arthur V. Watkins, of Utah. The Watkins committee recommended censure 
in part on the ground that Senator McCarthy's conduct toward the 
Gillette subcommittee, its members and the Senate ``was contemptuous, 
contumacious, and denunciatory, without reason, or justification, and 
was obstructive to

[[Page 1749]]

legislative processes.'' (5) After debate, the Senate 
adopted a resolution (S. Res. 301, as amended) censuring Senator 
McCarthy on two counts:
---------------------------------------------------------------------------
 5. 100 Cong. Rec. 16392, 83d Cong. 2d Sess., Dec. 2, 1954 [S. Res. 
        301, amended], S. Rept. No. 83-2508.
---------------------------------------------------------------------------

        Resolved, That the Senator from Wisconsin, Mr. McCarthy, failed 
    to cooperate with the Subcommittee on Privileges and Elections of 
    the Senate Committee on Rules and Administration in clearing up 
    matters referred to that subcommittee which concerned his conduct 
    as a Senator and affected the honor of the Senate and, instead, 
    repeatedly abused the subcommittee and its members who were trying 
    to carry out assigned duties, thereby obstructing the 
    constitutional processes of the Senate, and that this conduct of 
    the Senator from Wisconsin, Mr. McCarthy, is contrary to senatorial 
    traditions and is hereby condemned.
        Sec. 2. The Senator from Wisconsin, Mr. McCarthy, in writing to 
    the chairman of the Select Committee To Study Censure Charges (Mr. 
    Watkins) after the select committee had issued its report and 
    before the report was presented to the Senate charging three 
    members of the select committee with ``deliberate deception'' and 
    ``fraud'' for failure to disqualify themselves; in stating to the 
    press on November 4, 1954, that the special Senate session that was 
    to begin November 8, 1954, was a ``lynch party''; in repeatedly 
    describing this special Senate session as a ``lynch bee'' in a 
    nationwide television and radio show on November 7, 1954; in 
    stating to the public press on November 13, 1954, that the chairman 
    of the select committee (Mr. Watkins) was guilty of ``the most 
    unusual, most cowardly thing I've heard of'' and stating further: 
    ``I expected he would be afraid to answer the questions, but didn't 
    think he'd be stupid enough to make a public statement''; and in 
    characterizing the said committee as the ``unwitting handmaiden,'' 
    ``involuntary agent,'' and ``attorneys in fact'' of the Communist 
    Party and in charging that the said committee in writing its report 
    ``imitated Communist methods--that it distorted, misrepresented, 
    and omitted in its effort to manufacture a plausible 
    rationalization'' in support of its recommendations to the Senate, 
    which characterizations and charges were contained in a statement 
    released to the press and inserted in the Congressional Record of 
    November 10, 1954, acted contrary to senatorial ethics and tended 
    to bring the Senate into dishonor and disrepute, to obstruct the 
    constitutional processes of the Senate, and to impair its dignity; 
    and such conduct is hereby condemned.

    As noted above, one of the counts on which censure was voted in 
1954 concerned his conduct toward the Gillette subcommittee in 1952 
during the preceding Congress. The report of the select committee 
discussed at length the contention by Senator McCarthy that since he 
was re-elected in 1952, the committee lacked power to consider, as a 
basis for censure, any conduct on his part occurring prior to Jan. 3, 
1953, when he took his seat for a

[[Page 1750]]

new term (S. Rept. No. 2508, 83d Cong., pp. 20-23, 30, 31). The 
committee stated (p. 22):

        While it may be the law that one who is not a Member of the 
    Senate may not be punished for contempt of the Senate at a 
    preceding session, this is no basis for declaring that the Senate 
    may not censure one of its own Members for conduct antedating that 
    session, and no controlling authority or precedent has been cited 
    for such position.
        The particular charges against Senator McCarthy, which are the 
    basis of this category, involve his conduct toward an official 
    committee and official committee members of the Senate.

        The reelection of Senator McCarthy in 1952 was considered by 
    the select committee as a fact bearing on this proposition. This 
    reelection is not deemed controlling because only the Senate itself 
    can pass judgment upon conduct which is injurious to its processes, 
    dignity, and official committees.

    Elaborating on its view that only the Senate can pass judgment upon 
conduct adverse to its processes and committees, the select committee 
added (pp. 30-31):

        Nor do we believe that the reelection of Senator McCarthy by 
    the people of Wisconsin in the fall of 1952 pardons his conduct 
    toward the Subcommittee on Privileges and Elections. The charge is 
    that Senator McCarthy was guilty of contempt of the Senate or a 
    senatorial committee. Necessarily, this is a matter for the Senate 
    and the Senate alone. The people of Wisconsin can only pass upon 
    issues before them; they cannot forgive an attack by a Senator upon 
    the integrity of the Senate's processes and its committees. That is 
    the business of the Senate.

Censure of Thomas J. Dodd

Sec. 16.3 The Senate, by resolution reported by its Select Committee on 
    Standards and Conduct, censured a Senator for exercising the power 
    and influence of his office to obtain and use for his personal 
    benefit funds from the public raised through political testimonials 
    and a political campaign.

    The Senate, by resolution reported by its Select Committee on 
Standards and Conduct,(6)  censured Senator Thomas J. Dodd, 
of Connecticut, for exercising the power and influence of his office to 
obtain and use for his personal benefit funds from the public raised 
through political testimonials and campaigns.
---------------------------------------------------------------------------
 6. 113 Cong. Rec. 17073, 90th Cong. 1st Sess., June 23, 1967 [S. Res. 
        112], S. Rept. No. 90-193.
---------------------------------------------------------------------------

    The committee conducted hearings from June, 1966 through March, 
1967 on allegations that the Senator had misused campaign funds for 
personal purposes.(7)  From its investigations the committee 
concluded in its re

[[Page 1751]]

port that seven fund-raising events were held for the Senator for the 
period 1961 through 1965, and that the receipts from these totaled some 
$203,983. All but one of the events was represented as being held for 
political campaign purposes, either to raise funds for the Senator's 
1964 campaign or to pay off debts from his 1958 and 1964 campaigns for 
a seat in the Senate.(8)  The report stated:
---------------------------------------------------------------------------
 7. S. Rept. No. 90-193, p. 9.
 8. Id. at p. 24
---------------------------------------------------------------------------

        From the circumstances of all the fund-raising events, 
    including the exclusive control of the funds by members of Senator 
    Dodd's staff, the extensive participation by members of Senator 
    Dodd's staff, the close political relationship between Senator Dodd 
    and the sponsors of the fund-raising events, the preoccupation of 
    the organizers with Senator Dodd's apparently political 
    indebtedness, and the partisan political nature of the printed 
    programs, Senator Dodd's knowledge of the political character of 
    these events must be presumed.(9) 
---------------------------------------------------------------------------
 9. Id. at p. 24.
---------------------------------------------------------------------------

    In addition to the $203,983, Senator Dodd and the political 
committees supporting his re-election to the Senate in 1964 received 
campaign contributions of at least $246,290. The expenditure of these 
funds was summarized by the committee, as follows: (10) 
---------------------------------------------------------------------------
10. Id. at p. 25.
---------------------------------------------------------------------------

        From the proceeds of the seven fund-raising events from 1961 
    through 1965 and the contributions to the 1964 political campaign, 
    Senator Dodd or his representatives received funds totaling at 
    least $450,273. From these funds, Senator Dodd authorized the 
    payment of at least $116,083 for his personal purposes. The 
    payments included Federal income tax, improvements to his 
    Connecticut home, club expenses, transfers to a member of his 
    family, and certain other transportation, hotel, restaurant and 
    other expenses incurred by Senator Dodd outside of Connecticut or 
    by members of his family or his representatives outside of the 
    political campaign period. Senator Dodd further authorized the 
    payment of an additional amount of at least $45,233 from these 
    proceeds for purposes which are neither clearly personal nor 
    political. These payments were for repayment of his loans in the 
    sum of $41,500 classified by Senator Dodd as ``political-personal'' 
    and $3,733 for bills for food and beverages.

    In addition, after the 1964 campaign, Senator Dodd received a 
campaign contribution of $8,000 from the International Latex Corp., 
and, for a period of 21 months, he accepted as gifts the loans of three 
automobiles in succession from a constituent and used them for personal 
transportation.(11) 
---------------------------------------------------------------------------
11. On seven trips from 1961 through 1965, Senator Dodd requested and 
        accepted reimbursement from both the Senate and private 
        organizations for the same travel. Id. at p. 25. This was a 
        charge which the committee included in its censure resolution, 
        but which was deleted by an amendment offered by Senator Allen 
        J. Ellender (La.). See 113 Cong. Rec. 17020, 90th Cong. 1st 
        Sess., June 23, 1967.

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

[[Page 1752]]

    The committee found Senator Dodd's conduct censurable, as follows: 
(12) 
---------------------------------------------------------------------------
12. S. Rept. No. 90-193, p. 25.
---------------------------------------------------------------------------

        Senator Dodd exercised the influence and power of his office as 
    a United States Senator to directly or indirectly obtain funds from 
    the public through testimonials which were political in character, 
    over a period of five years from 1961 to 1965. The notices of these 
    fund-raising events received by the public either stated that the 
    funds were for campaign expenses or deficits or failed to state for 
    what purposes the funds were to be used. Not one solicitation 
    letter, invitation, ticket, program, or other written communication 
    informed the public that the funds were to be used for personal 
    purposes. Senator Dodd used part of the proceeds from these 
    political testimonials and part of the contributions from his 
    political campaign of 1964 for his personal benefit. These acts, 
    together with his requesting and accepting reimbursements from 1961 
    through 1965 for expenses from both the Senate and private 
    organizations for the same travel, comprise a course of conduct 
    which deserves the censure of the Senate, is contrary to accepted 
    morals, derogates from the public trust expected of a Senator, and 
    tends to bring the Senate into dishonor and disrepute

    The committee reported a resolution of censure, as follows:

        Resolved, That it is the judgment of the Senate that the 
    Senator from Connecticut, Thomas J. Dodd, for having engaged in a 
    course of conduct over a period of five years from 1961 to 1965 of 
    exercising the influence and power of his office as a United States 
    Senator, as shown by the conclusions in the investigation by the 
    Select Committee on Standards and Conduct
        (a) to obtain and use for his personal benefit, funds from the 
    public through political testimonials and a political campaign, and
        (b) to request and accept reimbursements for expenses from both 
    the Senate and private organizations for the same travel 
    (13)  deserved the censure of the Senate; and he is so 
    censured for his conduct, which is contrary to accepted morals, 
    derogates from the public trust expected of a Senator, and tends to 
    bring the Senate into dishonor and disrepute.(14) 
---------------------------------------------------------------------------
13. See footnote 11, supra.
14. S. Res. 112, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    Debate on the resolution (15)  began on June 13, 
1967.(16)  Senator John Stennis, of Mississippi, chairman of 
the committee, stated to the Senate that the censure resolution was not 
bottomed upon any one specific action or violation, nor on one 
expenditure or a few expenditures and not on one matter which could 
have been an error. He said:
---------------------------------------------------------------------------
15. The resolution, S. Res. 112, was introduced Apr. 27, 1967; see 113 
        Cong. Rec. 10977.
16. 113 Cong. Rec. 15663, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        . . . It is based on the fact that the practice happened over 
    and over and

[[Page 1753]]

    over again, so much so, and over a long period of time, as to 
    become a pattern of operation.
        The words used in the charge itself are ``course of conduct.'' 
    It amounted to a course of conduct that was wrong on its face, and 
    therefore brought the Senate into disrepute.(17) 
---------------------------------------------------------------------------
17. Id. at p. 15664.
---------------------------------------------------------------------------

    On June 22, Senator John Tower, of Texas, offered an amendment to 
delete ``censure'' and substitute therefor ``reprimand.'' He declared 
that: (18) 
---------------------------------------------------------------------------
18. Id. at p. 16979.
---------------------------------------------------------------------------

        This proposal would give us the opportunity to express our 
    displeasure, our disapproval, and our disassociation, but at the 
    same time avoid the severity of censure . . . inasmuch as there is 
    no precedent for censure on the basis of means of raising funds for 
    private political use, in the absence of an existing rule or code 
    on the subject.

    The amendment was defeated, 9 to 87.(19) 
---------------------------------------------------------------------------
19. Id. at p. 16986.
---------------------------------------------------------------------------

    After debate, which continued until June 23, 1967, the Senate 
adopted the resolution, by a vote of yeas 92, nays 5, after first 
striking the second charge relating to double-billing for several 
trips.(20)
---------------------------------------------------------------------------
20. Id. at p. 17020.
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 17. Imposition of Fine

    A fine may be levied by the House against a Member pursuant to its 
constitutional authority to punish its Members (Art. I, Sec. 5, clause 
2).(1)
---------------------------------------------------------------------------
 1. 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,'' pp. 28, 29.
            See also, 2 Hinds' Precedents  1665, p. 1142, for the 
        Senate censure case of McLaurin and Tillman, both Senators from 
        South Carolina, 57th Cong.; see also remarks of Senator Mills 
        (Tex.) in debate on charges against Senator Roach (N.D.), 25 
        Cong. Rec. 162, 53d Cong. 1st Sess., Apr. 15, 
        1893.                          -------------------
---------------------------------------------------------------------------

Fine of Member For Acts Committed in Prior Congress

Sec. 17.1 The House agreed to a resolution providing for the imposition 
    of a fine against a Member-elect charged with misuse of 
    appropriated funds in a prior Congress.

    In 1967, the recommendation of a House committee that Member-elect 
Adam Clayton Powell, of New York, be fined was considered and rejected 
in favor of a resolution that he be excluded.(2)  Two

---------------------------------------------------------------------------
 2. 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. The committee recommended that ``(3) Adam Clayton 
        Powell, as punishment (for improper expenditure of House funds 
        for private purposes, and for maintaining a person on his 
        clerk-hire payroll who performed no official duties whatever or 
        did not perform them in Washington, D.C., or in the Member's 
        district), pay the Clerk of the House, to be disposed of by him 
        according to law, $40,000; that the Sergeant at Arms of the 
        House be directed to deduct $1,000 per month from the salary 
        otherwise due Mr. Powell and pay the same to the Clerk, said 
        deductions to continue until said sum of $40,000 is fully paid; 
        and that said sums received by the Clerk shall offset any civil 
        liability of Mr. Powell to the United States of America with 
        respect to the matters referred to in paragraphs second and 
        third above (matter in parentheses).''
            See also H. Res. 278, 90th Cong. 1st Sess. The motion for 
        the previous question on this resolution containing the select 
        committee recommendation was defeated (113 Cong. Rec. 5020, 
        Mar. 1, 1967), and a substitute amendment excluding the Member-
        elect was proposed and adopted (113 Cong. Rec. 5037, 5038, Mar. 
        1, 1967). See also Sec. 14.1, supra.
--------------------------------------------------------------------------

[[Page 1754]]

years later, however, on Jan. 3, 1969,(3) the House agreed 
to a resolution which included a provision for a fine of $25,000 to be 
deducted on a monthly basis from Mr. Powell's salary.

---------------------------------------------------------------------------
 3. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. Res. 
        2]. After having been excluded from the 90th Congress (see  14, 
        supra), Mr. Powell won re-election to the 91st Congress, but 
        was required to pay a fine for improper expenditures made prior 
        to the 90th Congress.
---------------------------------------------------------------------------



 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
              B. NATURE AND FORMS OF DISCIPLINARY MEASURES
 
Sec. 18. Deprivation of Seniority Status

    Under the U.S. Constitution, the House is authorized to deprive a 
Member of his seniority status as a form of disciplinary 
action.(4)
---------------------------------------------------------------------------
 4. See Sec. 18.2, infra.
---------------------------------------------------------------------------

Procedure

Sec. 18.1 A Member may be reduced in committee seniority as a result of 
    party discipline enforced through the machinery of his party--the 
    caucus and the Committee on Committees.

    Parliamentarian's Note: In 1965, two Democratic Members who had 
refused to support the Presidential candidate of their party were 
reduced in committee seniority as the result of party discipline 
enforced through the machinery of the party-the caucus and the 
Committee on Committees.(5)
---------------------------------------------------------------------------
 5. One Member (Albert Watson [S.C.]) resigned from the House, 111 
        Cong. Rec. 805, 806, 89th Cong. 1st Sess., Jan. 15, 1965, and 
        was then re-elected as a member of the other political party in 
        a special election called to fill the vacancy. The other (John 
        B. Williams [Miss.]) was voted to the bottom of two committees, 
        111 Cong. Rec. 809, 89th Cong. 1st Sess., Jan. 15, 1965.

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

[[Page 1755]]

    As a matter of party disciplinary policy, the Democratic Caucus 
instructed the Committee on Committees to assign the ``last position'' 
on a committee to a particular Member. But other Members subsequently 
elected to the same committee were junior to him in committee 
seniority.(6)
---------------------------------------------------------------------------
 6. See 112 Cong. Rec. 27486, 89th Cong. 2d Sess., Oct. 18, 1966, 
        wherein committee member John Bell Williams (Miss.) was advised 
        that a newly elected Member would rank below Mr. Williams in 
        seniority.
---------------------------------------------------------------------------

    In 1967, the Democratic Committee on Committees reported to the 
House a resolution leaving vacancies on certain standing committees 
pending further consideration by the caucus of committee assignments 
and seniority thereon of a Member who had, in the preceding Congress, 
been stripped of his committee seniority (at the direction of the 
caucus) and assigned to the last position on the committees, and who 
had asked that he not be assigned to any committee pending a final 
determination by the caucus.(7)
---------------------------------------------------------------------------
 7. 113 Cong. Rec. 1086, 90th Cong. 1st Sess., Jan. 23, 1967, relating 
        to the assignment of committee positions of John Bell Williams 
        (Miss.).
---------------------------------------------------------------------------

Deprivation of Seniority Status For Acts Committed in Prior Congress

Sec. 18.2 Deprivation of seniority status is a form of disciplinary 
    action that may be invoked by the House against a Member, pursuant 
    to a committee's recommendation, under article I, section 5, clause 
    2 of the U.S. Constitution, for acts committed in a prior Congress.

    In the 90th Congress, a committee of the House recommended that a 
Member-elect, Adam Clayton Powell, of New York, be deprived of his 
seniority status and subjected to certain other penalties for his 
conduct in a prior Congress.(8)
---------------------------------------------------------------------------
 8. 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, Mar. 1, 
        1967), and a substitute amendment excluding the Member-elect 
        was proposed and adopted (113 Cong. Rec. 5037, 5038, Mar. 1, 
        1967). See Sec. 14.1, supra.
            The recommendation of the select committee was 
        characterized by a Member: ``Never before has any Member of the 
        Congress been stripped of his seniority in the course of 
        (punishment) proceedings.'' 113 Cong. Rec. 5006, Mar. 1, 1967, 
        remarks by Representative John Conyers, Jr. (Mich.).

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

[[Page 1756]]

    In the 91st Congress, the House agreed to a resolution which, among 
other things, reduced the seniority of Mr. Powell to that of first-term 
Congressman (thus eliminating consideration of any prior service in the 
computation of seniority).(9)
---------------------------------------------------------------------------
 9. 9. 115 Cong. Rec. 29, 34, 91st Cong. 1st Sess., Jan. 3, 1969 [H. 
        Res. 2]. r. Powell had been excluded by the House in the 90th 
        Congress, but had been reelected to the 91st Congress. The 
        resolution [H. Res. 2] also provided for a fine of $25,000 
        against Mr. Powell to be deducted on a monthly basis from his 
        salary, and specified that Mr. Powell had to take the oath 
        before Jan. 15, 1969, or his seat would be declared vacant.




[[Page 1757]]


 
                               CHAPTER 12
 
        Conduct or Discipline of Members, Officers, or Employees
 
                                APPENDIX


       Opinions of the Committee on Standards of Official Conduct

                                                                Advisory
                                                                Opinion
                                                                  No.

Subject:
  Communications with Federal agencies.......................         1
  Clerk-hire allowance.......................................         2
  Travel at expense of foreign governments...................         3
  Acceptance of nonpaid transportation.......................         4


                                     

                         ADVISORY OPINION NO. 1

                       (Issued January 26, 1970)

On the Role of a Member of the House of Representatives in 
    Communicating with Executive and Independent Federal Agencies

    Reason for Issuance.--A number of requests have come to the 
Committee for its advice in connection with actions a Member of 
Congress may properly take in discharging his representative function 
with respect to communications on constituent matters. This advisory 
opinion is written to provide some guidelines in this area in the hope 
they will be of assistance to Members.
    Background.--The first Article in our Bill of Rights provides that 
``Congress shall make no law . . . abridging the . . . right of the 
people . . . to petition the Government for a redress of grievances.'' 
The exercise of this Right involves not only petition by groups of 
citizens with common objectives, but increasingly by individuals with 
problems or complaints involving their personal relationships with the 
Federal Government. As the population has grown and as the Government 
has enlarged in scope and complexity, an increasing number of citizens 
find it more difficult to obtain redress by direct communication with 
administrative agencies. As a result. the individual turns increasingly 
to his most proximate connection with his Government, his 
Representative in the Congress, as evidenced by the fact that 
congressional offices devote more time to constituent requests than to 
any other single duty.
    The reasons individuals sometimes fail to find satisfaction from 
their petitions are varied. At the extremes, some grievances are simply 
imaginary rather than real, and some with merit are denied for lack of 
thorough administrative consideration.
    Sheer numbers impose requirements to standardize responses. Even if 
mechanical systems function properly and timely, the stereotyped 
responses they produce suggest indifference. At best, responses to 
grievances in form letters or by other automated means leave much to be 
desired.
    Another factor which may lead to petitioner dissatisfaction is the 
occasional failure of legislative language, or the administrative 
interpretation of it, to cover adequately all the merits the 
legislation intended. Specific cases arising under these conditions 
test the legislation and

[[Page 1758]]

provide a valuable oversight disclosure to the Congress.
    Further, because of the complexity of our vast Federal structure, 
often a citizen simply does not know the appropriate office to 
petition.
    For these, or similar reasons, it is logical and proper that the 
petitioner seek the assistance of his Congressman for an early and 
equitable resolution of his problem.
    Representations.--This Committee is of the opinion that a Member of 
the House of Representatives, either on his own initiative or at the 
request of a petitioner, may properly communicate with an Executive or 
Independent Agency on any matter to:
    --Lrequest information or a status report;
    --Lurge prompt consideration;
    --Larrange for interviews or appointments;
    --Lexpress judgment;
    --Lcall for reconsideration of an administrative response which he 
believes is not supported by established law, Federal regulation or 
legislative intent;
    --Lperform any other service of a similar nature in this area 
compatible with the criteria hereinafter expressed in this Advisory 
Opinion.
    Principles To Be Observed.--The overall public interest, naturally, 
is primary to any individual matter and should be so considered. There 
are also other self-evident standards of official conduct which Members 
should uphold with regard to these communications. The Committee 
believes the following to be basic:
        1. A Member's responsibility in this area is to all his 
    constituents equally and should be pursued with diligence 
    irrespective of political or other considerations.
        2. Direct or implied suggestion of either favoritism or 
    reprisal in advance of, or subsequent to, action taken by the 
    agency contacted is unwarranted abuse of the representative role.
        3. A Member should make every effort to assure that 
    representations made in his name by any staff employee conform to 
    his instruction.
    Clear Limitations.--Attention is invited to United States Code, 
Title 18, Sec. 203(a) which states in part: ``Whoever . . . directly or 
indirectly receives or agrees to receive, or asks, demands, solicits, 
or seeks, any compensation for any services rendered or to be rendered 
either by himself or another
        (1) at a time when he is a Member of Congress . . .; or
        (2) at a time when he is an officer or employee of the United 
    States in the . . . legislative . . . branch of the government . . 
    .
in relation to any proceeding, application, request for a ruling or 
other determination, contract, claim, controversy, charge, 
accusation, arrest, or other particular matter in which the United 
States is a party or has a direct and substantial interest, before 
any department, agency, court-martial, officer, or any civil, 
military, or naval commission . . .
    Shall be fined not more than $10,000 or imprisoned for not more 
than two years or both; and shall be incapable of holding any office of 
honor, trust, or profit under the United States.''
    The Committee emphasizes that it is not herein interpreting this 
statute but notes that the law does refer to any compensation, directly 
or indirectly, for services by himself or another. In this connec

[[Page 1759]]

tion, the Committee suggests the need for caution to prevent the 
accrual to a Member of any compensation for any such services which may 
be performed by a law firm in which the Member retains a residual 
interest.
    It should be noted that the above statute applies to officers and 
employees of the House of Representatives as well as to Members.

                         ADVISORY OPINION NO. 2

                         (Issued July 11, 1973)

On the Subject of a Member's Clerk Hire

    Reason for issuance.--A number of requests have come to the 
Committee for advice on specific situations which, to some degree, 
involve consideration of whether moneys appropriated for Members' clerk 
hire are being properly utilized.
    A summary of the responses to these requests forms the basis for 
this Advisory Opinion which, it is hoped, will provide some guidelines 
and assistance to all Members.
    Background.--The Committee requested the Congressional Research 
Service to examine in depth the full scope of the laws and the 
legislative history surrounding Members' clerk hire. The search 
produced little in the way of specific parameters in either case law or 
congressional intent, concluding that ``. . . no definitive definition 
was found . . .''. It is out of this absence of other guidance the 
Committee feels constrained to express its views.
    Clerk hire allowance for Representatives was initiated in 1893 (27 
Stat. 757). The law providing it spoke of providing clerical assistance 
to a Representative ``in the discharge of his official and 
representative duties . . .''. The same phraseology is used today in 
each Legislative Appropriations bill and by the Clerk of the House in 
his testimony before the Subcommittee on Legislative Appropriations. An 
exact definition of ``official and representative duties'' was not 
found in the extensive materials researched. Remarks concerning various 
bills, however, usually refer to ``clerical service'' or terms of 
similar import, thus implying a consistent perception of the term as 
payment for personal services.
    Summary Opinion.--This Committee is of the opinion that the funds 
appropriated for Members' clerk hire should result only in payment for 
personal services of individuals, in accordance with the law relating 
to the employment of relatives, employed on a regular basis, in places 
as provided by law, for the purpose of performing the duties a Member 
requires in carrying out his representational functions.
    The Committee emphasizes that this opinion in no way seeks to 
encourage the establishment of uniform job descriptions or imposition 
of any rigid work standards on a Member's clerical staff. It does 
suggest, however, that it is improper to levy, as a condition of 
employment, any responsibility on any clerk to incur personal 
expenditures for the primary benefit of the Member or of the Member's 
congressional office operations, such as subscriptions to publications, 
or purchase of services, goods or products intended for other than the 
clerk's own personal use.
    The opinion clearly would prohibit any Member from retaining any 
person from his clerk hire allowance under either an express or tacit 
agreement that the sal

[[Page 1760]]

ary to be paid him is in lieu of any present or future indebtedness of 
the Member, any portion of which may be allocable to goods, products, 
printing costs, campaign obligations, or any other nonrepresentational 
service.
    In a related regard, the Committee feels a statement it made 
earlier, in responding to a complaint, may be of interest. It states: 
``As to the allegation regarding campaign activity by an individual on 
the clerk hire rolls of the House, it should be noted that, due to the 
irregular time frames in which the Congress operates, it is unrealistic 
to impose conventional work hours and rules on congressional employees. 
At some times, these employees may work more than double the usual 
workweek--at others, some less. Thus employees are expected to fulfill 
the clerical work the Member requires during the hours he requires and 
generally are free at other periods. If, during the periods he is free, 
he voluntarily engages in campaign activity, there is no bar to this. 
There will, of course, be differing views as to whether the spirit of 
this principle is violated, but this Committee expects Members of the 
House to abide by the general proposition.''

                         ADVISORY OPINION NO. 3

                         (Issued June 26, 1974)

On the Subject of Foreign Travel by Members and Employees of the House 
    of Representatives at the Expense of Foreign Governments

    Reason for Issuance.--The Committee has received a number of 
requests from Members and employees of the House for guidance and 
advice regarding acceptance of trips to foreign countries, the expenses 
of which are borne by the host country or some agent or instrumentality 
of it.
    The Committee is advised that similar inquiries recently have been 
put to the Department of State with respect to other Federal employees.
    In order to provide widest possible dissemination to views 
expressed in response to the requests, and to coordinate with 
statements likely to be forthcoming from other areas of the Federal 
government in this regard, this general advisory opinion is 
respectfully offered.
    Background.--The United States Constitution, at Article I, Section 
9, Clause 8, holds that:
    No Title of Nobility shall be granted by the United States: And no 
Person holding any Office of Profit or Trust under them, shall without 
the Consent of the Congress, accept of any present, Emolument, Office, 
or Title, of any kind whatever, from any King, Prince, or foreign 
State.
    This provision, described as stemming from a ``just jealousy of 
foreign influence of every sort,'' is extremely broad as to whom it 
covers, as well as to the ``presents'' or ``emoluments'' it prohibits--
speaking of the latter as of any kind whatever. (emphasis provided)
    It is narrow only in the sense that the framers, aware that social 
or diplomatic protocols could compel some less than absolute observance 
of a prohibition on the receipt or exchange of gifts, provided for 
specific exceptions with ``the consent of the Congress.''
    Congress dealt from time to time with these exceptions through 
public and private bills addressed to specific situations, and dealt 
generally, commencing in 1881,

[[Page 1761]]

with the overall question of management of foreign gifts.
    In 1966 Congress passed the latest and the existing Public Law 89-
673, ``an Act to grant the consent of Congress to the acceptance of 
certain gifts and decorations from foreign governments.'' That law is 
presently codified at Title 5, United States Code, Section 7342, a copy 
of which is attached.
    The law is quite explicit in virtually all particulars, save 
whether the expense of a trip paid for by a foreign government is a ``. 
. . present or thing, other than a decoration, tendered by or received 
from a foreign government; . . .''
    It is on this point that this Opinion lies.
    Basis of Authority for Opinion.--Since this matter impinges equally 
on all Federal employees, the Committee sought advice from the 
Comptroller General as legal adviser to the Congress, and from the 
Secretary of State as the implementing authority over 5 U.S.C. 7342.
    Copies of their official responses are attached to this Opinion.
    Summary Opinion.--It is the opinion of this Committee, on its own 
initiative and with the advice of the Comptroller General and the 
Assistant Secretary of State, that acceptance of travel or living 
expenses in specie or in kind by a Member or employee of the House of 
Representatives from any foreign government, official agent or 
representative thereof is not consented to in 5 U.S.C. 7342, and is, 
therefore, prohibited. This prohibition applies also to the family and 
household of Members and employees of the House of Representatives.
Sec. L 7342. Receipt and disposition of foreign gifts and 
decorations

    (a) For the purpose of this section--
        (1) ``employee'' means--
            (A) an employee as defined by section 2105 of this title;
            (B) an individual employed by, or occupying an office or 
        position in, the government of a territory or possession of the 
        United States or of the District of Columbia;
            (C) a member of a uniformed service;
            (D) the President;
            (E) a Member of Congress as defined by section 2106 of this 
        title; and
            (F) a member of the family and household of an individual 
        described in subparagraphs (A)-(E) of this paragraph;
        (2) ``foreign government'' means a foreign government and an 
    official agent, or representative thereof;
        (3) ``gift'' means a present or thing, other than a decoration, 
    tendered by or received from a foreign government; and
        (4) ``decoration'' means an order, device, medal, badge, 
    insignia, or emblem tendered by or received from a foreign 
    government.
    (b) An employee may not request or otherwise encourage the tender 
of a gift or decoration.
    (c) Congress consents to--
        (1) the accepting and retaining by an employee of a gift of 
    minimal value tendered or received as a souvenir or mark of 
    courtesy; and
        (2) the accepting by an employee of a gift of more than minimal 
    value when it appears that to refuse the gift would be likely to 
    cause offense or embarrassment or otherwise adversely affect the 
    foreign relations of the United States.
However, a gift of more than minimal value is deemed to have been 
accepted on

[[Page 1762]]

behalf of the United States and shall be deposited by the donee for 
use and disposal as the property of the United States under 
regulations prescribed under this section.
    (d) Congress consents to the accepting, retaining, and wearing by 
an employee of a decoration tendered in recognition of active field 
service in time of combat operations or awarded for other outstanding 
or unusually meritorious performance, subject to the approval of the 
agency, office or other entity in which the employee is employed and 
the concurrence of the Secretary of State. Without this approval and 
concurrence, the decoration shall be deposited by the donee for use and 
disposal as the property of the United States under regulations 
prescribed under this section.
    (e) The President may prescribe regulations to carry out the 
purpose of this section. Added Pub. L. 90-83 Sec. 1(45)(C), Sept. 11, 
1967, 81 Stat. 208.

                                  ----
                                              Department of State,
                                      Washington, D.C., May 9, 1974.

Hon. melvin Price,
Chairman, Committee on Standards of Official Conduct, House of 
Representatives.

    Dear Mr. Chairman: I am replying to your letter of April 17 to Mr. 
Hampton Davis, of the Office of the Chief of Protocol, requesting 
comment on Congressman Kemp's suggestion that your Committee issue a 
briefing paper on the propriety of acceptance by Congressional Members 
and staff of trips offered them at the expense of foreign governments.
    Various Federal agencies have put similar questions to the 
Department of State on a number of occasions in behalf of their 
employees who have received but not yet acted on offers of such trips. 
It has been the Department's consistent position that the offer of an 
expenses-paid trip is an offer of a gift and that, therefore, if 
tendered by a foreign government or any representative thereof to a 
Federal employee, the Foreign Gifts and Decorations Act of 1966 would 
require its refusal. A trip cannot qualify under the special provision 
permitting acceptance of a gift of more than minimal value on the 
ground that to refuse it would appear likely to ``cause offense or 
embarrassment or otherwise adversely affect the foreign relations of 
the United States''. This follows from the requirement that the donee, 
being deemed to have accepted such a gift on behalf of the United 
States, deposit it for use and disposal as property of the United 
States in accordance with the implementing regulations, since the 
recipient of a trip could not fulfill that requirement.
    Precisely because of the impossibility of surrendering the gift of 
a trip once it has been accepted and taken, we believe it would be 
highly advisable for your Committee to issue the briefing paper on the 
subject which Congressman Kemp has suggested. In this connection the 
Committee may be interested to know that the Department is planning a 
new informational program designed to improve understanding and 
compliance with the Foreign Gifts and Decorations Act and the 
implementing regulations. The program will be aimed not only at those 
within the Federal establishment who might become donees or who may 
have responsibility for briefing potential donees, but also at the 
foreign governments that appear to be less than fully aware of the 
stringent legal restrictions

[[Page 1763]]

that we operate under in this area. We shall be happy to see that the 
Committee is included in the distribution of the material being 
developed.
    I hope that we have been helpful in this matter and that you will 
feel free to call upon us at any time you think we can be of 
assistance.

        Sincerely yours,

                                               Linwood Holton,
                                         Assistant Secretary for
                                          Congressional Relations.

                                           Comptroller General
                                           of The United States,
                                    Washington, D.C., May 9, 1974.
B-180472.
Hon. Melvin Price,
Chairman, Committee on Standards of Official Conduct, House of 
Representatives.
    Dear Mr. Chairman: Your letter of April 17, 1974, with attachments, 
requests our comments on the advisability of issuing a briefing paper 
on the legal ramifications of the acceptance by Members of Congress, or 
staff, of trips abroad that are paid for by foreign governments.
    We are not aware of any decision by any forum as to the legality of 
such trips. The question arises because of the prohibition contained in 
article I, section 9, clause 8, of the United States Constitution, 
which reads as follows:
    ``No Title of Nobility shall be granted by the United States: And 
no Person holding any Office of Profit or Trust under them, shall, 
without the Consent of the Congress, accept of any present, Emolument, 
Office, or Title of any kind whatever, from any King, Prince, or 
foreign State.''
    In connection with this provision, we have viewed the term 
``present'' as ``synonymous with the term `gift','' denoting 
``something voluntarily given, free from legal compulsion or 
obligation.'' 34 Comp. Gen. 331, 334 (1955); 37 Comp. Gen. 138, 140 
(1957). ``Emolument'' has been defined as profit, gain, or compensation 
received for services rendered. 49 Comp. Gen. 819, 820 (1970); B-
180472, March 4, 1974. Accordingly, and in view of the emphatic 
language of the Constitution (i.e., present or emolument ``of any kind 
whatever''), we see no basis whereby trips paid for by foreign 
governments may be accepted by Members of Congress or members of their 
staffs without the consent of the Congress. If payment of the cost of a 
trip in a particular case be considered as an emolument for services to 
be rendered acceptance thereof would be categorically prohibited by the 
above-cited constitutional provision unless consented to by the 
Congress.
    If on the other hand the payment of travel costs in a particular 
circumstance constitutes a gift, by enactment of section 7342 of title 
5, United States Code, entitled ``Receipt and disposition of foreign 
gifts and decorations,'' the Congress has given its consent to (quoting 
the Code provision in part)--
        ``(1) the accepting and retaining by an employee of a gift of 
    minimal value tendered or received as a souvenir or mark of 
    courtesy; and
        ``(2) the accepting by an employee of a gift of more than 
    minimal value when it appears that to refuse the gift would be 
    ]ikely to cause offense or embarrassment or otherwise adversely 
    affect the foreign relations of the United States.
        ``However, a gift of more than minimal value is deemed to have 
    been accepted on behalf of the United States and shall be deposited 
    by the donee for

[[Page 1764]]

    use and disposal as the property of the United States under 
    regulations prescribed under this section.''
    The term ``employee'' is defined in section 7342 as including 
members of Congress.
    By Executive Order 11320, the President delegated to the Secretary 
of State the authority to issue regulations implementing this statute. 
These regulations are contained in part 3 of title 22, Code of Federal 
Regulations (CFR). A ``gift of minimal value'' is defined as ``any 
present or other thing, other than a decoration, which has a retail 
value not in excess of $50 in the United States.'' 22 CFR Sec. 3.3(e). 
The statute and regulations do not specifically cover trips, and the 
legislative history of the Foreign Gifts and Decorations Act of 1966, 
of which section 7342 is a part, indicates that the statute 
contemplated gifts of tangible items. In any event, the intent seems 
clear that, although a gift of more than minimal value may be 
``accepted'' in the limited situations indicated, the value of such 
gift is not to inure to the benefit of the individual recipient. 
Accordingly, it is our view that section 7342 would not permit the 
acceptance of gifts of trips abroad by Members of Congress or members 
of their staffs that are paid for by foreign governments.
    We see no objection to the issuance of a briefing paper, setting 
forth the above views of our Office, in order to provide guidance to 
Members of the Congress regarding this matter.

        Sincerely yours,
                                                 R. F. Keller,
                                      Acting Comptroller General
                                             of the United States.

                         ADVISORY OPINION NO. 4

                         (Issued May 14, 1975)
On the Propriety of Accepting Certain Non-paid Transportation
    Reason for Issuance.--The Committee has been requested in writing 
to express an opinion on the propriety of Members and staff of the U.S. 
House of Representatives accepting non-paid transportation provided 
under a number of circumstances. In order that all may be on notice, 
the response to that request is made in this Committee Advisory 
Opinion.
    Background.--It is necessary and desirable that Members and 
employees of the U.S. House of Representatives, being public officials, 
maintain maximum contact with the public at large to provide 
information on the work of the House and to gain citizen input into the 
legislative process. To accomplish this, considerable travel is 
required. Under some circumstances, such travel may be appropriately 
provided by other than commercial means. Conversely, in some 
circumstances non-paid transportation offers should be declined. It is 
the intent of this Advisory Opinion to address both situations.
    The distinction turns on the purpose of the transportation. At 
times, it will be clear that there is a single identifiable purpose. At 
other times there may be more than one purpose involved. The Committee 
stresses that the opinions hereafter stated deal with the principal 
purpose for taking the trip, such purpose to be fairly determined by 
the person involved, before acceptance of any nonpaid transportation.
    Non-Paid Transportation Offers To Be Declined.--If the principal 
purpose of the trip is political campaign activity, and the host 
carrier is one who would be prohibited by law from making a campaign 
contribution, such non-paid transportation would amount to a political 
contribution in kind, and should not be accepted.

[[Page 1765]]

    If the trip is principally for noncampaign purposes, and the person 
involved were to request the host carrier to schedule transportation 
expressly for the convenience of the congressional passenger, such 
request could be interpreted as abuse of one's public position and 
should be avoided.
    Non-Paid Transportation Offers Which may be Accepted.--If the 
purpose of the trip is principally representational or even personal, 
and if the host carrier's purpose in scheduling the transportation is 
solely for the general benefit of the host, and the transportation is 
furnished on a space-available basis with no additional costs incurred 
in providing the accommodation, it would not be improper to accept such 
transportation.
    If the purpose of the transportation is to enable the congressional 
passenger, in his role as a public official, to be present at an event 
for the general benefit of an audience, the accommodation should be 
construed as accruing to the benefit of the audience--not the 
passenger--and it would not be improper to accept such transportation.
    The above principle can be similarly applied to situations in which 
a congressional passenger is transported in connection with the receipt 
of an honorarium. Under such circumstances, the transportation may be 
accepted in lieu of monetary reimbursement for travel to which the 
passenger would otherwise be entitled.
    Congressional officials, like other public officials and private 
persons, are on occasion invited as guests on scheduled airlines' 
inaugural flights. Specific authority to provide such non-paid 
transportation is contained in 14 CFR 223.8 and 399.34. Assuming that 
the conditions of these sections are strictly met, the Committee finds 
that there would be nothing improper in the acceptance of such 
inaugural flights.
