Article I, Section 5, Clause 2 — Rules

ArtI.S5.C2.1 Congressional Proceedings and the Rulemaking Clause

The Constitution’s Rulemaking Clause authorizes the House of Representatives and Senate to establish rules by which each will conduct its own business. Describing the Senate’s authority under the Rulemaking Clause “to determine how and when to conduct its business” as broad, the Court noted in National Labor Relations Board v. Canning:

The Constitution explicitly empowers the Senate to ‘determine the Rules of its

Proceedings.’ And we have held that ‘all matters of method are open to the

determination’ of the Senate, as long as there is ‘a reasonable relation between the

mode or method of proceeding established by the rule and the result which is sought to

be attained’ and the rule does not ‘ignore constitutional restraints or violate

fundamental rights.’¹

The House and Senate’s authority to establish rules is ongoing. As the Supreme Court observed in United States v. Ballin: “The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.”²

Under Ballin, the House and Senate may exercise their rulemaking authorities at their discretion provided there is (1) “a reasonable relation” between the rule’s method and the desired result, and (2) the rule does not “ignore constitutional restraints or violate fundamental rights.”³ Case law on when a House or Senate rule transgresses this standard is limited. In the 1932 case United States v. Smith,⁴ the Court held that the Senate’s rules did not allow the Senate to deprive an appointee of his title to federal office after he had been confirmed and taken the oath of office. In reaching this decision, the Court construed the Senate’s rules and held against the Senate, stating: “In deciding the issue, the Court must give great weight to the Senate’s present construction of its own rules; but so far, at least as that construction was arrived at subsequent to the events in controversy, we are not concluded by it.”⁵

In the 1949 case Christoffel v. United States,⁶ a sharply divided Court upset a perjury conviction in federal court of a witness who had denied under oath before a House committee that he was affiliated with Communist programs. Although the committee had a quoroum when the hearing commenced, at the time the witness allegedly perjured himself, some of the Members had stepped away from the hearing with the result that the number of Members in attendance was less than the number necessary to establish a quorum. Consequently, the Court reversed the lower court decision on the grounds that the witness’s testimony had not been before a “competent tribunal” under the District of Columbia Code.⁷ Writing for the Court, Justice Frank Murphy stated:

An element of the crime charged in the instant indictment is the presence of a

competent tribunal, and the trial court properly so instructed the jury. . . . [T]o

charge, however, that such a requirement is satisfied by a finding that there was a

majority present two or three hours before the defendant offered his testimony, in the

face of evidence indicating the contrary, is to rule as a matter of law that a quorum

need not be present when the offense is committed. . . . A tribunal that is not

competent is no tribunal, and it is unthinkable that such a body can be the instrument

of criminal conviction.⁸

In a dissent joined by three other Justices, Justice Robert H. Jackson argued that the Court’s ruling had invalidated the House’s rules and practices when it should have deferred to them and upheld the lower court decision. He stated: “The House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule despite the limitations consistently imposed upon courts where such an issue is tendered.”⁹ By questioning the legitimacy of the House’s rule and practice that “a quorum once established is presumed to continue” unless challenged, the Court, Justice Jackson suggested, risked undermining other actions taken by the House consistent with its rules.¹⁰ Justice Jackson noted: “Since the constitutional provision governing the House itself also requires a quorum before that body can do business, this raises the question whether the decision now announced will also apply to itself. If it does, it could have the effect of invalidating any action taken or legislation passed without a record vote, which represents a large proportion of the business done by both House and Senate.”¹¹

ArtI.S5.C2.2.1 Overview of Expulsion Clause

Article I, Section 5, Clause 2, expressly grants each house of Congress the power to discipline its own Members for misconduct, including through expulsion. Expulsion is the process¹ by which a house of Congress may remove one of its Members, after the Member has been duly elected and seated.² Expulsion, which is expressly provided for in the Expulsion Clause, is often confused with exclusion, which is an implied power of Congress that stems from the Qualifications Clauses for the House and Senate.³ Exclusion occurs when a body of Congress refuses to seat a Member-elect.⁴ Unlike the two-thirds majority requirement of the expulsion power, a body of Congress may exclude a Member-elect with a simple majority.⁵

While exclusion and expulsion both bar an individual from holding a seat in Congress, the two actions exist for different purposes and occur at different times. For example, in Powell v. McCormack, the Court explored the constitutionality of Representative Adam Clayton Powell’s exclusion from the House of Representatives.⁶ The impetus for the case was an investigation of expenditures authorized by Powell during the 89th Congress, which concluded that, as chairman of a House committee, the Member had engaged in improper activities, including deceiving House authorities with regard to travel expenses and directing illegal payments to his wife.⁷ The House took no formal action with regard to those findings during that Congress but refused to administer the oath of office to Powell at the start of the 90th Congress the following year.⁸ Subsequently, a Select Committee, which was appointed at the outset of the 90th Congress to determine Powell’s eligibility to be seated as a Member, recommended that Powell be sworn into office as a Member and subsequently disciplined.⁹ However, the House rejected that recommendation and instead adopted a resolution that would exclude Powell, which it approved by a vote of 307 to 116.¹⁰

Powell sued to be reinstated, and on appeal the Supreme Court held that Powell’s exclusion was unconstitutional, explaining that “exclusion and expulsion are not fungible proceedings.”¹¹ While the Court recognized that the Constitution grants broad authority to each of the houses of Congress regarding expulsion and other discipline,¹² it explained that Congress’s authority regarding exclusion was limited to the enumerated qualifications requirements.¹³ Because of the distinct nature of each action, the Court emphasized that the vote to exclude Powell, despite exceeding a two-thirds majority, could not substitute for his expulsion.¹⁴

ArtI.S5.C2.2.2 Historical Background on Expulsion Clause

The Expulsion Clause states that “[e]ach House may [ . . . ] punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”¹ Thus, the Constitution requires that expulsion of a Member of Congress may only be enforced “with the Concurrence of two-thirds.”² While the Expulsion Clause does not specify the measure of the two-thirds majority, the standard is generally understood to be assessed relative to the number of Members of that body who are present and voting.³ The two-thirds majority requirement mirrors the standard by which Congress may likewise remove officials in the Executive and Judicial Branches of government through the impeachment process.⁴

Like other constitutional provisions relating to the powers and privileges of the Congress,⁵ the origins of the Expulsion Clause lay with the practices of the British Parliament.⁶ The English House of Commons historically exercised an inherent authority to expel members by a simple majority vote.⁷ That power was viewed as one to be wielded at the body’s “absolute discretion” with few recognized limitations, and as a result, it was historically used more liberally in England than it has been in the United States.⁸ Moreover, the House of Commons expulsion power was used in a relatively ad hoc manner with, for example, no established standards governing the type of conduct warranting expulsion.⁹ As a result, hundreds of members were expelled from Parliament before the turn of the nineteenth century on grounds ranging from publishing slanderous writings to treason.¹⁰ Early parliamentary expulsions were motivated not only by a desire to preserve the integrity of the legislative process, but also to expel unpopular or dissenting legislators for political or religious reasons.¹¹

One contemporary English expulsion case that influenced the members of the Constitutional Convention was that of John Wilkes.¹² Wilkes was a Member of Parliament who in 1763 criticized the King’s peace treaty with France.¹³ Wilkes was arrested, expelled from the House of Commons, and fled into exile. He later returned to England and was reelected to Parliament in 1768, only to be convicted of seditious libel and again expelled from the House.¹⁴ Wilkes was repeatedly reelected, but each time Parliament excluded him, prevented him from taking his seat, and ultimately declared him ineligible for reelection.¹⁵ Wilkes was finally permitted to serve following his election in 1774, after which the House of Commons expunged his expulsions and exclusions, acknowledging that it had acted in a manner “subversive of the rights of the whole body of electors of this kingdom.”¹⁶

English precedents and traditions concerning expulsion were incorporated into the proceedings of the colonial legislatures, where legislators were expelled for an equally wide array of reasons.¹⁷ But the Wilkes case had a “significant impact in the American colonies,” and after the Revolution, “few expulsions occurred in the new state legislatures.”¹⁸ The House of Commons’s use of the expulsion power in the Wilkes case likely led to two constitutional restrictions on each house’s authority to judge its membership and discipline its members: constitutionally fixed qualifications for service in the House and Senate and a two-thirds supermajority requirement to expel a Member.¹⁹

Early draft versions of the Expulsion Clause from the Convention’s Committee of Detail²⁰ distinguished the power to expel from the power to punish members for “disorderly behavior”²¹ and may have contributed to the lack of significant debate on the Expulsion Clause at the Constitutional Convention.²² In early drafts, the “disorderly behavior” language appears to have been entirely separate from, and therefore inapplicable to, the power to expel.²³ It was not until late in the Convention’s consideration of the provision that the body approved the two-thirds requirement for expulsion. James Madison recommended the addition, noting that “the right of expulsion was too important to be exercised by a bare majority . . . . ”²⁴ No mention was made at the Convention in regards to the type of misconduct that would warrant expulsion.²⁵ Accordingly, it appears that the Founders viewed the chief barrier to the expulsion power’s abuse as the procedural requirement of the approval of a supermajority of a house of Congress, as opposed to any substantive requirement that defines what sort of conduct warrants expulsion.²⁶

ArtI.S5.C2.2.3 Judicial Interpretations of Expulsion Clause

The Supreme Court has not decided a case directly bearing on the expulsion of a Member of Congress, although judicial discussions of the expulsion power have developed in dicta.¹ The Court has stated, for example, that Congress’s expulsion power “extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a member.”² The Court highlighted that a Member’s conduct could be subject to legislative discipline even if “[i]t was not a statutable offence nor was it committed in his official character, nor was it committed during the session of Congress, nor at the seat of government.”³ The Court has also emphasized that the House and Senate may exercise the expulsion power exclusively, such that any prosecution by the Executive of related offenses by the Member does not interfere with Congress’s power to expel.⁴ These relatively few statements suggest the Court has a broad view of the expulsion power.

The lack of judicial precedent directly addressing the Expulsion Clause may be due to the political question doctrine, a principle stemming from the Constitution’s separation of powers.⁵ Under the doctrine, courts have declined to decide cases involving “political questions,” which are controversies where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.”⁶ In this vein, courts have been cognizant that the expulsion power, as a form of legislative discipline, exists separately from civil or criminal liability and empowers the respective houses of Congress to maintain the integrity and dignity of the legislature and its proceedings.⁷

The Supreme Court has reflected this reasoning in some of its cases touching on the Expulsion Clause. For example, in 1897, the Court discussed the Expulsion Power in a case of a petitioner convicted of criminal contempt for refusing to answer questions during a congressional investigation of potential misconduct of Members of Congress.⁸ Acknowledging that the houses of Congress had broad power to discipline Members and discretion in exercising that power, the Court declined to “encroach upon the province of that body.”⁹ In a criminal case against a Senator involving congressional privileges, the Court recognized that Congress has “almost unbridled discretion” over the standards for expulsion.¹⁰ The Court observed that Members who are subject to legislative discipline are “judged by no specifically articulated standards,” but by a body “from whose decision there is no established right of review.”¹¹ The Court also discussed justiciability in Powell v. McCormack after determining that the House’s attempt to bar a Member’s service constituted an exclusion rather than expulsion.¹² In Powell, the Court generally recognized that the exclusion at issue was justiciable because “the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”¹³ In a concurring opinion, however, Justice William O. Douglas noted that, “if this were an expulsion case I would think that no justiciable controversy would be presented.”¹⁴

Members of Congress who were expelled do not appear to have challenged the expulsion decision itself in court. Some Members who have faced disciplinary proceedings under the Expulsion Clause have attempted to challenge the disciplinary measures through judicial review, but lower courts have consistently declined to consider the claims, citing separation of powers concerns.¹⁵ For example, in United States v. Traficant, a Member of the House of Representatives was convicted by a jury of criminal charges related to his service in Congress and then found by the House Ethics Committee to have violated the House’s internal rules of conduct, resulting in his eventual expulsion.¹⁶ The U.S. Court of Appeals for the Sixth Circuit rejected the Member’s claim that he could not be punished through both a criminal trial and legislative discipline because of the Fifth Amendment’s Double Jeopardy prohibition,¹⁷ concluding that both branches have distinct authority to punish behavior of Members that can be exercised independent of the other.¹⁸

ArtI.S5.C2.2.4 Misconduct That Occurred in Office

Expulsion cases have been rare.¹ As of 2017, a total twenty Members of Congress have been expelled from their respective bodies—five in the House² and fifteen in the Senate.³ While the grounds for expulsions may illustrate potential bases upon which the House or Senate may decide to expel a Member, they are not necessarily the exclusive grounds for expulsion as this is left to the discretion of the respective bodies of Congress.⁴ Accordingly, expulsion is “‘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.’”⁵ Expulsion does not appear to apply automatically to any particular conduct.⁶

Disloyalty to the United States appears to be the predominant basis upon which both the House and Senate have exercised their power to expel Members. Eighteen of the twenty expulsions in congressional history were based on the Members’ disloyalty to the United States.⁷ The earliest expulsion case in 1797 involved a Senator who “concocted a scheme for Indians and frontiersmen to attack Spanish Florida and Louisiana, in order to transfer those territories to Great Britain” for his own financial gain.⁸ The Senate special committee that was appointed to investigate the matter recommended expulsion, describing the Senator’s conduct as “entirely inconsistent with his public trust,” and the full Senate subsequently voted to expel the Member by a vote of 25-1.⁹

The majority of expulsion cases based on disloyalty to the United States—seventeen of the eighteen—arose in the context of the secession of the Confederate states at the beginning of the Civil War.¹⁰ In early 1861, the Senate considered the status of Members representing states that were contemplating secession, ultimately expelling ten Members in a single vote after the war had begun.¹¹ In those cases, the Members represented Southern states that had seceded from the Union, and the Members had not formally resigned from the Senate. The expulsion resolution cited the Members’ failure to appear in the Senate and alleged that the Members “are engaged in said conspiracy for the destruction of the Union and Government, or, with full knowledge of such conspiracy, have failed to advise the Government of its progress or aid in its suppression.”¹² Other examples of Civil War expulsions involved Members who had supported secessionists despite representing states that had not seceded.¹³

After the Civil War expulsions, neither the House nor Senate expelled a Member for more than a century. In 1980, a Member was expelled following a criminal conviction on charges relating to receiving a payment in return for promising to use official influence on legislation in the so-called ABSCAM¹⁴ investigation.¹⁵ In 2002, the House expelled a Member who had been convicted of various criminal charges relating to his official actions in Congress, including bribery, illegal gratuities, obstruction of justice, defrauding the government, filing false tax returns, and racketeering.¹⁶

In some cases, Members’ behavior has drawn public calls for expulsion or preliminary proceedings by the respective house toward potential expulsion, but the Member ultimately resigned prior to a formal decision to expel.¹⁷ Members have resigned facing formal expulsion inquiries or even recommendations for expulsion for conduct during their time in office.¹⁸ In the Senate, one such example occurred in 1995 when the Select Committee on Ethics recommended expelling a Member following its investigation of allegations of sexual misconduct, misuse of official staff, and attempts to interfere with the Committee’s inquiry.¹⁹ In the House, for example, the Committee on Standards of Official Conduct recommended expelling a Member for conduct violations related to activities that also resulted in the Member’s criminal conviction for accepting illegal gratuities, illegal trafficking, and obstruction of justice.²⁰

ArtI.S5.C2.2.5 Misconduct Occurring Prior to Election or Reelection

Whether the House and Senate may expel a Member for conduct that solely occurred prior to an intervening election appears unresolved. House and Senate practice (drawn primarily from committee reports relating to expulsion resolutions that were either not approved or not acted upon by the full body) concerning expulsions for prior misconduct are relatively inconsistent and do not appear to establish a clear and constant interpretation of whether prior conduct (i.e., conduct occurring before an intervening election)¹ may form the basis for an expulsion.² While the reasoning underlying the House and Senate approach to expulsions for prior misconduct does not appear to be uniform, and thus may have limited value in understanding the constitutional power,³ some evidence suggests that both the House and the Senate have, on occasion, “distrusted their power” to expel for such conduct.⁴ Manifestations of this “distrust” through more restrictive interpretations of the expulsion power appear to be driven more by considerations of policy than of constitutional authority.⁵

Reticience by the House or Senate to expel a Member for conduct that occurred prior to election may be justified by reluctance to supplant the judgment of the duly elected Member’s constituency with that of a supermajority of the body. That justification is strongest when the Member’s constituency is fully aware of the prior misconduct, but nevertheless elects the Member to represent them.⁶ In short, the body must balance its interest in “assur[ing] the integrity of its legislative performance and its institutional acceptability to the people at large as a serious and responsible instrument of government,”⁷ with respect for the voting public’s electoral decisions and deference to the popular will and choice of the people.⁸ This view is consistent with James Madison’s statements in the Federalist Papers that “frequent elections” would be the chief means of ensuring “virtuous” legislators⁹ and Justice Joseph Story’s view that, although the expulsion power was both necessary and critical to the integrity of each house, exercise of the power was “at the same time so subversive of the rights of the people,” as to require that it be used sparingly and to be “wisely guarded” by the required approval of a two-thirds majority.¹⁰

Congress’s attempt to balance House and Senate integrity with deference to the people’s will does not appear to be based on a clear constitutional prescription. As a 1914 House Judiciary Report noted:

In the judgment of your committee, the power of the House to expel or punish by

censure a Member for misconduct occurring before his election or in a preceding or

former Congress is sustained by the practice of the House, sanctioned by reason and

sound policy and in extreme cases is absolutely essential to enable the House to

exclude from its deliberations and councils notoriously corrupt men, who have

unexpectedly and suddenly dishonored themselves and betrayed the public by acts and

conduct rendering them unworthy of the high position of honor and trust reposed in

them . . . .

But in considering this question and in arriving at the conclusions we have reached, we

would not have you unmindful of the fact that we have been dealing with the question

merely as one of power, and it should not be confused with the question of policy also

involved. As a matter of sound policy, this extraordinary prerogative of the House, in

our judgment, should be exercised only in extreme cases and always with great caution

and after due circumspection, and should be invoked with greatest caution where the

acts of misconduct complained of had become public previous to and were generally

known at the time of the Member’s election.¹¹

To exercise the power of expulsion in a case in which the misconduct was generally known at the time of the Member’s election, the report further noted, the House “might abuse its high prerogative, and in our opinion might exceed the just limitations of its constitutional authority by seeking to substitute its standards and ideals for the standards and ideals of the constituency of the Member who had deliberately chosen him to be their Representative.”¹²

ArtI.S5.C2.2.6 House of Representatives Treatment of Prior Misconduct

Whether the Expulsion Clause extends to misconduct that occurred prior to a Member’s election (or reelection) has been explored more thoroughly in the House than in the Senate.¹ As early as 1884, Speaker John G. Carlisle responded to a proposed House investigation of alleged misconduct that occurred prior to a Member’s election by stating that “this House has no right to punish a Member for any offense alleged to have been committed previous to the time when he was elected as a member of the House. That has been so frequently decided in the House that it is no longer a matter of dispute.”² Nevertheless, disagreement exists on whether a Member can be expelled for prior misconduct.³

In 1872, two House committees investigating Members Oakes Ames and James Brooks for their role in the Credit Mobilier scandal reached different conclusions.⁴ The alleged misconduct had occurred “four or five years” prior to being brought to the attention of the House and before the Members had been elected to Congress.⁵ A special committee found that the House had authority to expel a Member for conduct occurring in a prior Congress, and before an intervening election, and recommended that the House exercise that power with respect to Ames and Brooks.⁶ The report concluded that the Constitution placed “no qualification [on] the [expulsion] power” and assigned no restriction as to when an offense that warranted expulsion had to occur.⁷ The committee interpreted the expulsion power to have no apparent limit, reasoning that although inappropriate, “[i]f two-thirds of the House shall see fit to expel a man . . . without any reason at all . . . they have the power, and there is no remedy except by appeal to the people.”⁸ The committee also addressed whether the expulsion power authorized the House to override the will of a Member’s constituency, who, with full knowledge of the questionable conduct, chose to elect him as their representative:

The committee have no occasion in this report to discuss the question as to the power

or duty of the House in a case where a constituency, with a full knowledge of the

objectionable character of a man, have selected him to be to their representative. It is

hardly a case to be supposed that any constituency, with a full knowledge that a man

had been guilty of an offense involving moral turpitude, would elect him. The majority

of the committee are not prepared to concede such a man could be forced upon the

House, and would not consider the expulsion of such a man any violation of the rights

of the electors, for while the electors have rights that should be respected, the House as

a body has rights also that should be protected and preserved.⁹

The House Judiciary Committee reached a different conclusion with respect to Ames and Oakes, however, adopting a much narrower view of the expulsion power.¹⁰ According to the Committee, so long as a Member “does nothing which is disorderly or renders him unfit to be in the House while a member thereof . . . the House has no right or legal constitutional jurisdiction or power to expel the member.”¹¹ In support of this conclusion, the Committee also addressed the right of the Member’s constituency, noting: “This is a Government of the people, which assumes that they are the best judges of the social, intellectual, and moral qualifications of their Representatives whom they are to choose, not anybody else to choose for them . . . .”¹² Ultimately, the House chose to censure, rather than expel, Ames and Brooks.¹³ However, in adopting the censure resolution, the House specifically refused to agree to a preamble that asserted that “grave doubts exist as to the rightful exercise by this House of its power to expel a Member for offenses committed by such Member long before his election thereto and not connected with such election.”¹⁴

Other House examples, however, suggest that the House has viewed itself, at times, as lacking the power to expel a Member for misconduct occurring prior to the individual’s last election.¹⁵ The House Rules Manual, for example, reflects different interpretations: while previously providing that “both Houses have distrusted their power to punish in such cases,” it no longer makes such a statement.¹⁶ Similarly, a House select committee investigating the possible expulsion of John W. Langley stated in 1925 that “with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member . . . . ”¹⁷ A 1972 House report similarly noted that “[p]recedents, without known exception, hold that the House will not act in any way against a Member for any actions of which his electorate had full knowledge at the time of his election. The committee feels that these precedents are proper and should in no way be altered.”¹⁸

The Supreme Court relied upon these and other House precedents in Powell v. McCormack.¹⁹ Although urged by the House to view Powell’s exclusion as an expulsion, the Court would not assume that the House would have voted to exclude Powell given that Members had “expressed a belief that such strictures [on expelling a Member for prior conduct] apply to its own power.”²⁰ The Court specifically stated, however, it was not ruling on the House’s authority to expel for past misconduct.²¹

Two additional examples provide additional insight into the ambiguity of the House’s various positions on the reach of the expulsion power. In 1979, a House committee recommended censure of Charles C. Diggs, Jr., when he was reelected to the House after being convicted of a criminal kickback scheme involving his congressional employees.²² In discussing the House’s authority to punish a Member for known conduct that occurred prior to an election, the Committee noted that “the House has jurisdiction under Article I, Section 5 to inquire into the misconduct of a Member occurring prior to his last election, and under appropriate circumstances, to impose at least those disciplinary sanctions that fall short of expulsion.”²³ Although perhaps questioning whether expulsion can reach prior misconduct, the committee did not conclude that it lacked the power to expel in such a case, instead deeming it “unwise” to “express an opinion on the Constitutional issue of whether the House has the power to expel” for prior misconduct.²⁴ The report added that “the House cannot overlook entirely the reelection of Rep. Diggs following his conviction and due respect for that decision by his constituents is a proper element in the consideration of this case.”²⁵

In 1981, a House committee recommended expulsion of Raymond F. Lederer for misconduct occurring while he was a Member, but prior to his reelection to Congress.²⁶ A grand jury indicted Lederer in connection with the ABSCAM inquiry before his reelection, but he was not convicted until after the voters of his district had returned him to Congress.²⁷ As a result of this timing, the Special Counsel to the House Committee on Standards of Official Conduct concluded that “the voters did not have full knowledge of the offenses he committed at the time they reelected him, and there appears to be no constitutional impediment to the Congressional expulsion power under such circumstances.”²⁸

ArtI.S5.C2.2.7 Senate Treatment of Prior Misconduct

The Senate’s use of expulsion for prior misconduct¹ suggests that the Senate does not have a clearly established view on whether a Member may be expelled for conduct that occurred prior to the Member’s election to the Senate.² In 1807, John Quincy Adams provided an early, broad conception of the Senate’s expulsion power, writing in a committee report that “[b]y the letter of the Constitution the power of expelling a Member is given to each of the two Houses of congress, without any limitation other than that which requires a concurrence of two-thirds.”³ The two-thirds requirement was, in the opinion of the committee, “a wise and sufficient guard against the possible abuse of this legislative discretion.”⁴ Yet, the report also suggested that whether the public was aware of the misconduct was significant in asserting that expulsion was the appropriate remedy when misconduct was “suddenly and unexpectedly revealed to the world.”⁵

Other Senate precedents suggest that when misconduct occurred is a factor in determining whether expulsion is appropriate. For example, as Senator-elect Arthur R. Gould prepared to take the oath of office after being elected in 1926, allegations were made that he engaged in bribery in connection with a Canadian railroad contract that occurred in 1911.⁶ A Senate committee investigated and recommended that the Senate disregard all charges.⁷ In the committee report, a question was raised as to whether, under the circumstances, the Senate had the authority to expel.⁸ Although the committee expressed no opinion on the “important constitutional questions touching the power of the Senate,” the report nevertheless stated that “expulsion of a Member of the Senate for an offense alleged to have been committed prior to his election must depend upon the peculiar facts and circumstances of the particular case.”⁹ The full Senate later adopted the committee’s recommendation to disregard all charges.

A Senate committee took a highly restrictive view of the Senate’s expulsion power in the exclusion case of Senator William Langer.¹⁰ Shortly after his election to the Senate in 1941, the Senate received allegations of the Senator’s participation in a wide variety of misconduct, including a bribery and kickback scheme during his time as a state official.¹¹ A Senate committee investigated the matter and in its report recommended that Langer be excluded on the grounds that he lacked the required “moral fitness” to be a Senator.¹² The report also discussed the absence of any authority to expel Langer from the Senate. “This committee finds,” the report concluded, “that expulsion cannot occur unless the offender is a member, at the time when the injury to the Senate insides.”¹³ The Committee did qualify that blanket conclusion, however, by reserving the Senate’s right to expel a Member for unknown prior misconduct, ultimately concluding that the Constitution “does not contemplate expulsion for any crime or violation of rules, or Infraction of law, except such as occurred either during membership or was first disclosed during membership to the impairment of the honor of the Senate.”¹⁴

The recommended expulsion of Senator Robert Packwood in 1995 supports the conclusion that the Senate has authority to expel a Member for conduct prior to election, at least when the conduct was not previously known and occurred during the Member’s previous term in office. In that case, the Senate Ethics Committee voted unanimously to recommend that the Senate expel Senator Packwood for various allegations, including acts of sexual misconduct stretching back to 1969.¹⁵ Much of the Senator’s conduct, however, was not uncovered until after his 1992 reelection.¹⁶

The Committee report began by articulating a broad expulsion power, acknowledging that the Supreme Court had “implied an unqualified authority of each House of Congress to discipline a Member for misconduct, regardless of the specific timing of the offense.”¹⁷ The report also made a distinction between the power of censure and the power to expel, similar to that which was made by the House in the 1979 case of Charles C. Diggs, Jr., noting that “[h]istorically, neither House of congress has abdicated its ability to punish a Member in the form of censure” for prior misconduct.¹⁸ With regard to expulsion, the report noted only that “[t]here have been indications that the Senate, in an expulsion case, might not exercise its disciplinary discretion with regard to conduct in which an individual had engaged before the time he or she had been a member.”¹⁹ For this proposition, the Senate report cited a single past expulsion case in which the Senate did not act on a specific charge “since it was to have been taken previously to the election” of the Senator.²⁰

House and Senate examples appear to support the conclusion that both bodies have been “less than consistent” in their views on the expulsion power’s application to conduct occurring prior to a Member’s last election.²¹ However, in either house, the key factors for consideration include whether the Member’s constituency had knowledge of the misconduct and whether the misconduct, though taking place before an intervening election, nonetheless occurred during one of the Member’s previous terms in office.²² However, exercising restraint in expelling a Member generally does not appear to be due to a constitutional restriction; rather, it is a policy choice based on respect for the democratic system.²³