Congressional Misconduct [1 ed.] 9781617281976, 9781607411178

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Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Congressional Misconduct, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,

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In: Congressional Policies, Practices and Procedures Series

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CONGRESSIONAL MISCONDUCT

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information Congressional Misconduct, Incorporated, 2009. Ebook Central, that the publisher is not engaged in contained herein.Nova ThisScience digitalPublishers, document is sold with theProQuest clear understanding

CONGRESSIONAL POLICIES, PRACTICES AND PROCEDURES SERIES

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Congressional Misconduct Jack Maskell 2009 ISBN 978-1-60741-117-8

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In: Congressional Policies, Practices and Procedures Series

CONGRESSIONAL MISCONDUCT

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

JACK MASKELL

Nova Science Publishers, Inc. New York

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Copyright © 2009 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers’ use of, or reliance upon, this material.

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Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Available Upon Request

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CONTENTS Preface Chapter 1 Chapter 2

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Chapter 3 Chapter 4

Chapter 5

vii Expulsion and Censure Actions Taken by the Full Senate Against Members

1

Status of a Senator Who Has Been Indicted for or Convicted of a Felony

37

Recall of Legislators and the Removal of Members of Congress from Office

53

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony

71

Loss of Federal Pensions for Members of Congress Convicted of Certain Offenses

89

Index

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PREFACE The authority of the United States Senate (as well as of the House) to establish the rules for its own proceedings, to “punish” its Members for misconduct, and to expel a Member by a vote of two-thirds of Members present and voting, is provided in the Constitution at Article I, Section 5, clause 2. This express grant of authority for the Senate to expel a Senator is, on its face, unlimited — save for the requirement of a two-thirds majority. In the context of what the Supreme Court has characterized as, in effect, an “unbridled discretion” of the body, expulsions in the Senate, as well as the House, have historically been reserved for cases of the most serious misconduct: disloyalty to the government or abuses of one’s official position. Under the United States Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutionally established terms of office by their resignation or death, or by action of the House of Congress in which they are a Member by way of an “expulsion,” or by a finding that in accepting a subsequent public office deemed to be “incompatible”with congressional office, the Member has vacated his congressional seat. Chapter 1 - The authority of the United States Senate (as well as of the House) to establish the rules for its own proceedings, to “punish” its Members for misconduct, and to expel a Member by a vote of two-thirds of Members present and voting, is provided in the Constitution at Article I, Section 5, clause 2. This express grant of authority for the Senate to expel a Senator is, on its face, unlimited — save for the requirement of a two-thirds majority. In the context of what the Supreme Court has characterized as, in effect, an “unbridled discretion” of the body, expulsions in the Senate, as well as the House, have historically been reserved for cases of the most serious misconduct: disloyalty to the government or abuses of one’s official position. The Senate has actually expelled only 15 Members — 14

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of those during the Civil War period for disloyalty to the Union (one of these expulsions was subsequently revoked by the Senate), and the other Senator during the late 1700s for disloyal conduct. The House of Representatives has expelled only five Members in its history, three during the Civil War period, one in 1980, and another in 2002, after convictions for bribery and corruption offenses related to official congressional duties. In the Senate, as well as in the House, however, other Members for whom expulsion was recommended have resigned from office prior to official, formal action by the institution. The term “censure,” unlike the term “expel,” does not appear in the Constitution, and has traditionally been used to describe the “punishment” imposed by the Senate under authority of Article I, Section 5, clause 2, when the full body formally disapproves of conduct by way of the adoption of a resolution expressing such condemnation or disapproval. There is no specific forfeiture of rights or privileges that automatically follows a “censure” by the Senate. The term “censure” is used to describe the action of the Senate formally adopting a resolution expressing the body’s “censure,” “condemnation,” “denouncement,” or other expression of disapproval of a Member’s conduct, even when the word “censure” is not expressly included in the language of the resolution. There is no specific or official hierarchy or ranking of the terms that have been employed in a censure resolution, although there may be certain connotations associated with the language used in a resolution because of precedents and associations with past Members disciplined. The Senate has censured nine Senators for various misconduct, including conduct not a violation of any law or specific written Senate ethics rule, when such conduct is found contrary to “acceptable norms of ethical conduct in the Senate,” contrary to “accepted morals” and “senatorial ethics,” when found to “derogate from the public trust expected of a Senator,” and/or found to be “reprehensible” conduct which brings the Senate into “dishonor and disrepute.” Conduct resulting in Senate “censure” has included violating orders of secrecy of documents; fighting in the Senate (“censure”); allowing a lobbyist with interests in particular legislation to be on official staff with access to the secret considerations of the legislation by committee (“condemn”); non-cooperation and abuse of investigating committees of the Senate (“condemn”); financial irregularities concerning political contributions (“censure”), office expenses and contributions (“denounce”), and excessive honoraria, official reimbursements and gifts (“denounce”). Chapter 2 - There are no federal statutes or Rules of the Senate that directly affect the status of a Senator who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution,

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Preface

ix

statutory law, nor the Rules of the Senate upon an indictment. Thus, under Senate Rules, an indicted Senator may continue to participate in congressional proceedings and considerations; and under the Constitution a person under indictment is not disqualified from being a Member of or a candidate for reelection to Congress. Internal party rules in the Senate may, however, provide for certain steps to be taken by an indicted Senator. For example, the Senate Republican Conference Rules require an indicted chairman or ranking member of a Senate committee, or a member of the party leadership, to temporarily step aside from his or her leadership or chairmanship position. Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. No express constitutional disability or “disqualification” from Congress exists for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct by someone who has taken an oath of office to support the Constitution. Unlike Members of the House, Senators are not instructed by internal Senate Rules to refrain from voting in committee or on the Senate floor once they have been convicted of a crime which carries a particular punishment. Internal party rules in the Senate may affect a Senator’s position in committees. Under the Senate Republican Conference Rules, for example, Senators lose their chairmanships of committees or ranking member status upon conviction of a felony. Conviction of certain crimes may subject — and has subjected in the past — Senators to internal legislative disciplinary proceedings, including resolutions of censure, as well as an expulsion from the Senate upon approval of two-thirds of the Members. Conviction of certain crimes relating to national security offenses would result in the Member’s forfeiture of his or her entire federal pension annuity under the provisions of the so-called “Hiss Act” and, under more recent provisions of law, conviction of particular crimes by Members relating to public corruption will result in the loss of the Member’s entire “creditable service” as a Member for purposes of calculating their federal retirement annuities. This report summarizes the potential consequences, with respect to congressional status, that may result when a sitting Senator is indicted for or is convicted of a felony.[1] Chapter 3 - Under the United States Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutionally established terms of office by their resignation or death, or by action of the House of Congress in which they are a Member by way of an “expulsion,” or by a finding that in accepting a subsequent public office deemed to be “incompatible” with congressional office, the Member has vacated his congressional seat.

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Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress may be removed from office before the normal expiration of his or her constitutional term by an “expulsion” from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the Members of the respective body present and voting. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each House has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member. As to removal by recall, the United States Constitution does not provide for nor authorize the recall of United States officers such as Senators, Representatives, or the President or Vice President, and thus no Member of Congress has ever been recalled in the history of the United States. The recall of Members was considered during the time of the drafting of the federal Constitution in 1787, but no such provisions were included in the final version sent to the states for ratification, and the specific drafting and ratifying debates indicate an express understanding of the Framers and ratifiers that no right or power to recall a Senator or Representative from the United States Congress exists under the Constitution. Although the Supreme Court has not needed to directly address the subject of recall of Members of Congress, other Supreme Court decisions, as well as the weight of other judicial and administrative decisions, rulings and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office is one which resides exclusively in each House of Congress as expressly delegated in the expulsion clause of the United States Constitution, and (2) the length and number of the terms of office for federal officials, established and agreed upon by the states in the Constitution creating that Federal Government, may not be unilaterally changed by an individual state, such as through the enactment of a recall provision or a term limitation for a United States Senator or Representative. Under Supreme Court constitutional interpretation, since individual states never had the original sovereign authority to unilaterally change the terms and conditions of service of federal officials agreed to and established in the Constitution, such a power could not be “reserved” under the 0th Amendment.

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Chapter 4 - There are no federal statutes or Rules of the House of Representatives that directly affect the status of a Member of Congress who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the House merely upon an indictment for an offense, prior to an establishment of guilt under the judicial system. Thus, under House Rules, an indicted Member may continue to participate in congressional proceedings and considerations; under the Constitution, a person under indictment is not disqualified from being a Member of or a candidate for re-election to Congress. Internal party rules in the House, however, require an indicted chairman or ranking Member of a House committee, or a member of the House party leadership, to temporarily step aside from his or her leadership or chairmanship position. Additionally, a recent change in the Rules of the House requires the House Committee on Standards of Official Conduct, generally known as the House “Ethics Committee,” to either initiate an inquiry by an investigative subcommittee of that Committee within 30 days of the time any Member of the House has been indicted or otherwise charged with criminal conduct in any state or federal court, or to report to the House the Committee’s reasons for not moving forward. Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. No express constitutional disability or “disqualification” from Congress exists for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct by someone who has taken an oath of office to support the Constitution. Members of the House are, however, instructed by House Rules not to vote in committee or on the House floor once they have been convicted of a crime for which the punishment may be two or more years imprisonment. Furthermore, under party rules, Members may lose their chairmanships of committees or ranking member status upon conviction of a felony. Conviction of certain crimes may subject — and has subjected in the past — Members of the House to internal legislative disciplinary proceedings, including resolutions of reprimand and censure, as well as expulsion from the House upon approval of two-thirds of the Members. Conviction of certain crimes relating to national security offenses would result in the Member’s forfeiture of his or her entire federal pension annuity under the provisions of the so-called “Hiss Act” and, under more recent provisions of law, conviction of particular crimes by Members relating to public corruption will result in the loss of the Member’s entire “creditable service” as a Member for purposes of calculating their federal retirement annuities.

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This report summarizes the potential consequences, with respect to congressional status, that may result when a sitting Member of the House of Representatives is indicted for or is convicted of a felony. Chapter 5 - Under provisions of existing federal law commonly known as the "Hiss Act," Members of Congress, in a similar manner as other federal officers and employees, currently lose their federal employee retirement annuities if they are convicted of certain designated federal crimes relating to disloyalty or involving national security or national defense-related offenses against the United States. Legislative proposals have been introduced in the last several Congresses to expand the crimes for which the loss of such pensions would result as an additional penalty for the commission of those designated offenses. Any new or additional penalty, such as forfeiture of one's federal pension, which attaches to the commission of an offense would, however, under the Constitution's ex post facto prohibition, have to apply prospectively only, and could not work retroactively to take away the pensions of Members of Congress or former Members who had already engaged in the covered criminal misconduct prior to the passage of such new legislation. Under current law, Members of Congress and other federal officials who lose their pension annuity payments for violation of certain national security-related crimes, may receive back their own contributions to the retirement fund, and would not forfeit their own savings and earnings in the Thrift Savings Plan under the Federal Employee Retirement System (FERS). Changing the annuities that one is to receive under the federal retirement program does not violate "contract" principles, nor does such consequence of a conviction of certain federal laws constitute an improper taking of property violative of the Fifth Amendment. A few of the new proposals, however, would require loss of one's contributions to the retirement system, and the loss of one's own savings and earnings in the Thrift Savings Plan. Because of the nature of the vested "property" interest that a Member or employee has in his or her own contributions to the retirement system and in his or her own savings and earnings in the Thrift Savings Plan, any provisions which would require loss of such property would have to conform to certain constitutional criteria, and would raise issues as to whether such loss and forfeiture of vested property may constitute an excessive fine under the Eighth Amendment. This report discusses the current law with respect to the loss of the federal pension of a Member of Congress for the conviction of certain crimes, and discusses generally legislative proposals to amend the provisions of this law to expand the scope and coverage of those provisions requiring the loss of a Member's pension.

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Chapter 1

EXPULSION AND CENSURE ACTIONS TAKEN BY THE FULL SENATE AGAINST MEMBERS *

ABSTRACT

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The authority of the United States Senate (as well as of the House) to establish the rules for its own proceedings, to “punish” its Members for misconduct, and to expel a Member by a vote of two-thirds of Members present and voting, is provided in the Constitution at Article I, Section 5, clause 2. This express grant of authority for the Senate to expel a Senator is, on its face, unlimited — save for the requirement of a two-thirds majority. In the context of what the Supreme Court has characterized as, in effect, an “unbridled discretion” of the body, expulsions in the Senate, as well as the House, have historically been reserved for cases of the most serious misconduct: disloyalty to the government or abuses of one’s official position. The Senate has actually expelled only 15 Members — 14 of those during the Civil War period for disloyalty to the Union (one of these expulsions was subsequently revoked by the Senate), and the other Senator during the late 1700s for disloyal conduct. The House of Representatives has expelled only five Members in its history, three during the Civil War period, one in 1980, and another in 2002, after convictions for bribery and corruption offenses related to official congressional duties. In the Senate, as well as in the House, however, other Members for whom expulsion was recommended have resigned from office prior to official, formal action by the institution. The term “censure,” unlike the term “expel,” does not appear in the Constitution, and has traditionally been used to describe the “punishment” imposed by the Senate under authority of Article I, Section 5, *

This is an edited, excerpted and augmented edition of a Congrressional Research Service Publication 93-875, dated November 12, 2008.

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Jack Maskell clause 2, when the full body formally disapproves of conduct by way of the adoption of a resolution expressing such condemnation or disapproval. There is no specific forfeiture of rights or privileges that automatically follows a “censure” by the Senate. The term “censure” is used to describe the action of the Senate formally adopting a resolution expressing the body’s “censure,” “condemnation,” “denouncement,” or other expression of disapproval of a Member’s conduct, even when the word “censure” is not expressly included in the language of the resolution. There is no specific or official hierarchy or ranking of the terms that have been employed in a censure resolution, although there may be certain connotations associated with the language used in a resolution because of precedents and associations with past Members disciplined. The Senate has censured nine Senators for various misconduct, including conduct not a violation of any law or specific written Senate ethics rule, when such conduct is found contrary to “acceptable norms of ethical conduct in the Senate,” contrary to “accepted morals” and “senatorial ethics,” when found to “derogate from the public trust expected of a Senator,” and/or found to be “reprehensible” conduct which brings the Senate into “dishonor and disrepute.” Conduct resulting in Senate “censure” has included violating orders of secrecy of documents; fighting in the Senate (“censure”); allowing a lobbyist with interests in particular legislation to be on official staff with access to the secret considerations of the legislation by committee (“condemn”); non-cooperation and abuse of investigating committees of the Senate (“condemn”); financial irregularities concerning political contributions (“censure”), office expenses and contributions (“denounce”), and excessive honoraria, official reimbursements and gifts (“denounce”).

Each house of the United States Congress is expressly authorized within the Constitution to “punish” its own Members for misconduct, and the Senate has exercised this authority in the past by imposing formal “censures,” imposing restitution costs, and by expelling Senators from the Senate. In imposing legislative discipline against their Members, the Senate and the House operate through their rulemaking powers,[1] and the express provision for legislative discipline is specifically set out within the clause of the Constitution establishing the rulemaking authority of each house of Congress, at Article I, Section 5, clause 2:

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

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The underlying justification for legislative discipline has traditionally been to protect the integrity and dignity of the legislative institution and its proceedings, rather than merely to punish an individual;[2] and such internal legislative process is additional to any potential criminal or civil liability that a Member might incur for any particular misconduct.[3] Senators are subject to internal, congressional discipline for any conduct which the institution of the Senate believes warrants such discipline. The express constitutional authority drafted by the Framers of the Constitution was influenced by British parliamentary practice, as well as our own colonial legislative experiences, and reflects the principle and understanding that although the qualifications of Members of Congress were intentionally kept to a minimum to allow the voters the broadest discretion in sending whomever they please to represent them in Congress,[4] the Senate and the House have the right to discipline those who breach their privileges or decorum, or who damage their integrity or reputation, even to the extent of expelling from Congress a duly-elected Member.[5] On several occasions, Senate committees to whom censure or expulsion resolutions were referred have recommended certain discipline to the full body, but either the Senate took no action, adjourned prior to consideration (and the Member was defeated in a subsequent election), the Member resigned before Senate action, or the Senate simply did not act upon the particular recommendation or resolution.[6] Additionally, it should be noted that the Senate has delegated to the Select Committee on Ethics the authority to investigate any “improper conduct” of a Senator or employee “which may reflect upon the Senate,” and to recommend to the Senate appropriate disciplinary action.[7] As part of the authority delegated to it, the Senate Select Committee on Ethics may issue, and has in the past issued, “a private or public letter of admonition” on the committee’s own accord, without further Senate action.[8] The focus of this report, however, is upon those disciplinary actions which were taken by the full Senate against Members.

EXPULSION Expulsion is the form of action whereby the Senate (or the House), after a Member has taken the oath of office,[9] removes that Senator (or Representative, in the case of the House) from membership in the respective body by a vote of at least two- thirds of the Members present and voting.[10] The authority to expel a Member is expressly provided for in the Constitution at Article I, Section 5, clause 2. This grant of authority within the Constitution for each house of Congress to expel a Member appears to have been influenced by the

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parliamentary practice in England whereby Members of the House of Commons were expelled, regardless of the nature or timing of the offense, as a disciplinary action, as well as a remedial measure to deal with those deemed “unworthy” or “unfit” for membership.[11]

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Distinguished from Exclusion It should be noted that the disciplinary action of expulsion is different than, and is distinguished from, the action of exclusion. An exclusion is where the Senate (or the House) refuses to seat a Member-elect, generally upon the objection of another Member or Member-elect, by a simple majority vote on the grounds that such challenged Member-elect has either not met the three standing constitutional qualifications of office (age, citizenship, and inhabitancy in the state from which elected), or was not “duly elected.”[12] The authority of the Senate to exclude a Member-elect by a simple majority vote of the body — although there had been some legitimate minority argument to the contrary in the past — is now clearly understood to be limited to questions of whether a Member-elect meets the constitutional qualifications for office,[13] or the question of whether the Member-elect had been “duly elected” (a question which is generally resolved in a so-called “contested election” case).[14] The Supreme Court in Powell v. McCormack stated clearly that “the Constitution leaves the House [and the Senate] without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”[15] The precedents in the Senate which pre-date the 1969 Powell v. McCormack decision, and which consider moral character and/or past misconduct in assessing the “suitability,” “fitness,” or “qualifications” of an individual who was duly elected by the voters of a state in an “exclusion” proceeding, are, therefore, of suspect relevance and value as a precedent concerning this issue at the present time. As explained in Deschler’s Precedents, “The [Powell] decision apparently precludes the practice of the House or Senate, followed on numerous occasions during the 19th and 20th centuries, of excluding Members-elect for prior criminal, immoral, or disloyal conduct.”[16]

Authority as to Grounds and Timing There is no limitation apparent in the text of the Constitution, nor in the deliberations of the Framers, on the authority to expel a Member of Congress, other

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than the two-thirds vote requirement. One study of the expulsion clause summarized the Framers’ intent as follows:

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[From] the history of Article I, Section 5, clause 2, and in particular its course in the Committee of Detail, it is clear that the Framers ... did not intend to impose any limitation on Congressional power to determine what conduct warranted expulsion .... Nor do the debates in the Convention suggest any desire to impose any other substantive restrictions on the expulsion power.[17]

Justice Joseph Story similarly concluded that it would be “difficult to draw a clear line of distinction between the right to inflict the punishment of expulsion, and any other punishment upon a member, founded on the time, place, or nature or the offense,” and that “expulsion may be for any misdemeanor, which, though not punishable by any statute, is inconsistent with the trust and duty of” a Member.[18] The Supreme Court of the United States, citing Justice Story’s historic treatise on the Constitution, found an expansive authority and discretion within each house of Congress concerning the grounds and the timing for an expulsion. In In re Chapman, the Supreme Court noted the Senate expulsion case of Senator William Blount[19] as supporting the constitutional authority of either house of Congress to punish a Member for conduct which in the judgment of the body “is inconsistent with the trust and duty of a member” even if such conduct was “not a statutable offense nor was it committed in his official character, nor was it committed during the session of Congress, nor at the seat of government.”[20] The Supreme Court has thus recognized a very broad discretion and authority of each house of Congress to discipline its Members under its own chosen standards, generally without established right to judicial review. Describing the congressional disciplinary process, the Supreme Court in United States v. Brewster, noted in dicta: The process of disciplining a Member in the Congress ... is not surrounded with the panoply of protective shields that are present in a criminal case. An accused Member is judged by no specifically articulated standards, and is at the mercy of an almost unbridled discretion of the charging body ... from whose decision there is no established right of review.[21]

It is thus likely that a court would find, in a similar fashion to the above quoted dicta of the Supreme Court in Brewster (regarding “no established right to review” of a congressional disciplinary action), that the issue of an expulsion of a Senator by the Senate (or a Representative by the House) is a non-justiciable

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“political question” in which there exists a “textually demonstrable constitutional commitment of the issue to a coordinate political department” of government.[22] Unlike the factual premise in the Powell exclusion, an expulsion of a Member for misconduct would not appear to involve another, express constitutional provision which may be in conflict with the exercise of such authority of the legislature;[23] nor would such action arguably impinge upon the constitutional rights of an individual.[24] In fact, in Powell v. McCormack, Justice Douglas in his concurring opinion noted the difference in justiciability between that exclusion case based on “qualifications” other than those established in another, express provision of the Constitution, as opposed to an expulsion case based on misconduct, by noting that “if this were an expulsion case I would think that no justiciable controversy were presented.”[25] Although the authority and power of each house of Congress to expel appears to be within the broad discretion of the institution, or as noted by the Supreme Court in dicta “at the unbridled discretion of the charging body,” policy considerations, as opposed to questions of power, may have generally restrained the Senate and the House in exercising the authority to expel a Member when the conduct complained of occurred prior to the time the individual was elected to be a Member of Congress,[26] or when the conduct complained of occurred in a prior Congress when the electorate knew of the conduct but still reelected the Member to the current Congress.[27] On occasion, this restraint has been characterized, such as in dicta by the Supreme Court, as evidence that “both Houses have distrusted their power to punish in such cases” of past misconduct.[28] The Court in Powell v. McCormack, supra, in distinguishing the exclusion of Powell from an expulsion, observed that congressional precedents have shown that “the House will not expel a member for misconduct committed during an earlier Congress.”[29] The Court noted specifically, however, that it was not actually ruling on the House’s authority to expel for past misconduct,[30] and, as noted above, Justice Douglas, in his concurrence stated specifically that “if this were an expulsion case I would think that no justiciable controversy were presented,” since Douglas agreed with Senator Murdock of Utah in a 1940 exclusion case that each house may “expel anyone it designates by a two- thirds vote.”[31] It should be noted that the principal congressional case cited by the Supreme Court for its assertion in Powell v. McCormack that the House “will not expel” for prior misconduct, the case involving Representative John W. Langley, involved many other relevant considerations. Although the committee in that instance did question the ability of the House to expel an individual for misconduct (resulting in a criminal conviction) “prior to his election as a Member,” the committee also found that “the House could not permit in its membership a person serving a sentence for a

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crime.”[32] In resolving this apparent conflict, the committee reported to the House that Representative Langley, whose conviction prior to his reelection was pending on appeal, had agreed not to participate in House proceedings while the appeal was pending, and had agreed to resign if his appeals were denied. After Langley’s appeals were denied by the Supreme Court, he resigned his office.[33] It should also be noted that many of the arguments opposed to proceeding against a Member of the House for misconduct in a prior Congress were based on the concept that the existing House should not take recognition of injuries to a past House of Representatives.[34] The Senate, however, has consistently considered itself to be a “continuing” body,”[35] and thus injuries to the integrity and dignity of the Senate in the past may not have the same character of being, arguably, against a “different” institution or body. In the report on the McCarthy censure, the Select Committee to Study Censure charges specifically stated the following:

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Precedents in both the Senate and House for expulsion or censure for conduct occurring during a preceding Congress may be found in Hinds (op. cit. 1275 to 1289). Precedents in the House cannot be considered as controlling because the House is not a continuing body.[36]

A careful reading of congressional precedents would appear to indicate that although there has certainly been some questioning of the “right” of the body to expel a Member for past misconduct when reelected, with knowledge of his constituents of that conduct, there have been divisions of opinions on this subject. For example, there were two conflicting opinions of two different House committees in the Credit Mobilier investigations on the discipline of Representatives Ames and Brooks in the 42nd Congress in 1872.[37] In adopting a disciplinary resolution of censure and not expulsion in that case, however, the House specifically refused to accept a preamble to the substitute resolution for censure which had expressly questioned its authority to expel for past misconduct.[38] Differences of opinion also arose in other expulsion and disciplinary cases.[39] In modern congressional practice, and in light of Supreme Court rulings and dicta, it would appear to be more accurate to say that restraint concerning a Member’s expulsion after reelection has arisen from a questioning by the institution of the Senate or the House of the wisdom of such a policy, rather than a formal recognition of an absence of constitutional power to expel for past misconduct. The reticence of the House or the Senate to expel a Member for past misconduct after the Member has been reelected by his or her constituents, with knowledge of the Member’s conduct, appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people.[40] Justice Story, while

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noting the necessity of expulsion of one who “disgrace[d] the House by the grossness of his conduct,” noted that such power of the institution of the House to expel a dulyelected representative of the people is “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 a two-thirds requirement.[41] Similarly, Cushing noted that the power to expel “should be governed by the strictest justice,” since in expelling a dulyelected Member without just cause “a power of control would thus be assumed by the representative body over the constituent, wholly inconsistent with the freedom of election.”[42] In 1807 Senator John Quincy Adams discussed in a select committee report on a proposed expulsion of Senator John Smith for his alleged part in the Aaron Burr conspiracy, the issues of the authority of the Senate to expel a Member even after the Senator’s indictment had been dropped. Although the indictment, as well as the alleged misconduct, occurred subsequent to the time of Senator Smith’s election to the Senate by the Ohio legislature, Senator Adams discussed in broad terms the Senate’s authority to expel, finding that “By 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.” This sole limitation, that is, the two-thirds requirement, was in the opinion of the select committee “a wise and sufficient guard against the possible abuse of this legislative discretion.”[43] The distinction between the “power” of the House of Representatives to expel, and the judicious use of that power as a “policy” of the House, was cogently explained in a House Judiciary Committee report in 1914: 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

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generally known at the time of the Member’s election. To exercise such power in that instance 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. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.[44]

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The power to expel is thus used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate as to the character or fitness for office of an individual whom the people have chosen to represent them in Congress.[45] The principal manner of dealing with ethical improprieties or misconduct of a Representative (Senators were not at the time of the adoption of the Constitution, and until 1913, chosen directly by the people, but were selected by the state legislatures) was intended by the Framers to be, and has historically been, reliance upon the voters to keep their Members “virtuous” through the “restraint of frequent elections.”[46] However, there is no indication in the actual text of the Constitution or in the debates on the adoption of Article I, Section 5, clause 2, that such limitation has been imposed, nor has any judicial ruling on the authority or power of the Senate found an express or implied limitation on the expulsion power, to reach only conduct that was not known to an electorate prior to election or reelection of the Senator.

Practices and Precedents Actual expulsions in the Senate (as well as in the House) have historically concerned cases of perceived disloyalty to the United States Government,[47] or of a violation of criminal statutory law which involved abuse of one’s official position.[48] However, it should be noted that the Senate Select Committee on Ethics, in 1995, recommended the expulsion of a Member for conduct which had not been the subject of any criminal prosecution, but which involved allegations of an abuse of the authority of the Senator’s office and position in making unwanted sexual advances to women, enhancing his personal financial position, and for obstructing and impeding the Committee’s investigation.[49] In the United States Senate, 15 Senators have been expelled, 14 during the Civil War period for disloyalty to the Union (one expulsion was later revoked by the Senate),[50] and one Senator was expelled in 1797 for other disloyal conduct.[51] Although the Senate has actually expelled relatively few Members, and none since the Civil War, other Senators, when facing a recommended expulsion for

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misconduct, have resigned their seat rather than face the potential expulsion action.[52] In the House of Representatives, five Members have been expelled — 3 during the Civil War period for disloyalty, one in 1980 after conviction of bribery and conspiracy in congressional office, and one Member in 2002 after his convictions for bribery, receipt of illegal gratuities, and other corruption charges, while several other Members, facing potential expulsion, resigned their offices prior to action by the full House of Representatives.[53] The Senate has demonstrated that in cases of conviction of a Member of crimes that relate to official misconduct, that the institution need not wait until all of the Senator’s judicial appeals are exhausted, but that the Senate may independently investigate and adjudicate the underlying factual circumstances involved in the judicial proceedings, regardless of the potential legal or procedural issues that may be raised and resolved on appeal.[54] In the last expulsion action regarding a sitting Member of the Senate who had been convicted of a crime, the Senate Select Committee on Ethics went forward with the disciplinary investigation and hearing after the Senator’s conviction, and issued its report recommending expulsion prior to the conclusion of the appellate procedure, but suggested that the Senate postpone consideration of the committee’s report and recommendation of discipline until after the Senator’s appeals were concluded.[55] Subsequent to the Member’s conviction, and up until the time the full Senate considered the Senate Select Committee on Ethics’s recommendation of expulsion in this particular matter, the Senator who had been convicted of the felony offenses continued to participate and vote on the floor of the Senate.[56] It may be noted, generally, that as to precedents in the Senate concerning the policy considerations and procedural decisions regarding disciplinary actions, as well as precedents in the House of Representatives, that such precedents are, of course, not necessarily binding on a subsequent Senate, but are given substantial weight and consideration in the formulation of each Member’s consideration of the matter.[57]

CENSURE The term “censure,” unlike the term “expel,” does not appear in the Constitution, although the authority is derived from the same clause in the Constitution at Article I, Section 5, clause 2, concerning the authority of each house of Congress to “punish its Members for disorderly Behaviour.” The Standing Orders of the Senate provide that the Select Committee on Ethics may recommend to the Senate disciplinary action against a Member “including, but not limited to, in the case of a Member: censure, expulsion, or recommendation to the appropriate party

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conference regarding such Member’s seniority or positions of responsibility ....”[58] A “censure” in the Senate has traditionally meant the “punishment” imposed by the Senate when the full body formally disapproves of conduct or behavior of a Member by way of the adoption, by majority vote, of a resolution expressing such condemnation or disapproval. Under Senate Rules, no forfeiture of rights or privileges automatically follows a “censure” by the Senate, but the individual political party caucus or conference rules in the Senate may have relevance to party and committee leadership positions. The term “censure” is used to describe the formal action of the Senate adopting a resolution expressing the body’s “censure,” “condemnation,” “denouncement,” or general disapproval of a Member’s conduct even when the word “censure” is not expressly included in the language of the resolution.[59] In the two earliest Senate censure cases cited by historians and parliamentarians, the resolutions finally adopted by the Senate did not use any specific term of disapproval, such as “censure,” “condemn,” or “denounce,” but merely stated the relevant findings and the conclusion that Senator Pickering, in 1811, “committed a violation of the rules of this body”;[60] and that Senator Tappan, in 1844, was “guilty of a flagrant violation of the rules of the Senate and disregard of its authority.”[61] During the floor discussion of the 1844 censure it was stated by a Member of the Select Committee examining the matter that the use of no express word of disapproval in the previous censure resolution of Senator Pickering in 1811 was “evidently designed as a mild form of censure.”[62] Senators Bingham of Connecticut, in 1929, and McCarthy of Wisconsin, in 1954, were “condemned” by the full Senate in a resolution; while the resolutions adopted in the cases of Senators McLaurin and Tillman of South Carolina, in 1902, and Thomas Dodd of Connecticut, in 1967, used the term “censure.” Senator Talmadge in 1979, and Senator Durenberger in 1990, were “denounced” in the resolutions adopted by the Senate.

Condemn The term “condemn” has been used in two censure resolutions in the Senate, in 1929 and in 1954. It appears that no distinction of great import was made at the times of those actions in using the word “condemn” in the censure resolutions, as opposed to the term “censure,” and that the terms were seen at the times employed as substantially synonymous.[63]

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In the censure of Senator Joseph McCarthy from Wisconsin, the select committee considering the matter recommended in its report that on two of the charges investigated the “Senator from Wisconsin, Mr. McCarthy, should be censured,”[64] and reported out favorably the resolution referred to the committee which provided that the conduct of the Senator “is hereby condemned.”[65] In the floor consideration of the resolution, the Chairman of the Select Committee to Study Censure Charges, Senator Watkins of Utah, was questioned in a colloquy by another member of the Select Committee concerning the uses of the terms “censure” and “condemn”: Mr. CASE. Let me ask the Senator from Utah how he refers to the adoption of a censure resolution which would have for its main substance section 1, which uses the word “condemn,” and when he now proposes that section 2 be modified by including the words “and condemn”? How does the Senator from Utah think that modification will modify the censure proposed in Section 2? Mr. WATKINS. The modification strikes out the word “censure.” Mr. CASE. Yes; but then we come to the words “and condemn” in section 1, although the Senator from Utah still refers to the resolution as a censure resolution. Mr. WATKINS. That is a difference of semantics. Some persons believe that “condemn” is a stronger word than “censure”; and some persons believe that “censure” is a stronger word than “condemn.” I do not know which is which.[66]

The Select Committee and its Chairman in the McCarthy censure did not officially distinguish between the meaning of the two terms employed. However, it is clear that at least one Member of the Senate at the time felt that the term “condemn” was the stronger term, and that the Senator was not necessarily dissuaded from that perception by the Select Committee Chairman.[67] At present, it may be argued that the use of the verb “condemn” in a censure resolution, although not officially distinguished from using any other word in such resolution, may be perceived to be a somewhat stronger disapproval than merely using the term “censure,” based in large part on the feelings associated with the last Senator to be “condemned” for conduct in a censure resolution, the late Senator Joseph McCarthy. In a later Senate consideration of a censure resolution, the Chairman of the then Senate Select Committee on Standards and Conduct, Senator Stennis of Mississippi, stated that he had believed that the term “condemn” was a harder and a more “severe” term than “censure.”[68]

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Denounce The term “denounce” has been used in two relatively recent censure resolutions in the Senate. As discussed above, although distinctions were intentionally drawn in the Herman Talmadge case between using the word “denouncement” in the resolution on the one hand, and the use of the terms “censure” or “condemnation” on the other, historians and parliamentarians consider the disciplinary action voted in the Talmadge case, where the full Senate formally “denounced” his conduct in a resolution, as a “censure” of Senator Talmadge.[69] The Senate Select Committee on Ethics in the Talmadge matter noted in its report that it was using the term “denounce” in the resolution to distinguish the facts in the Talmadge case “from those earlier matters in which the Senate ‘censured’ or ‘condemned’ a Member” so that the Committee may express “its judgments and recommendations ... with words that do not depend on analogy to dissimilar historical circumstances for interpretation.”[70] The Committee report did not expressly explain why the Talmadge matter was distinguishable from past matters, nor if it considered the term “denounce” as stronger or weaker than the terms “censure” or “condemn.” In the additional views of Senator Schmitt in the Senate report, however, the Senator argued that the terms are essentially “equivalent,” but that the term “denounce” was employed because only a “gross neglect” of duty of a Member towards the administration of his office affairs was found, while the actual wrongdoing was perpetrated by staff: Such words as “reprehensible” and “denounced” have no legal or historic precedents for their use as do “censured” and “condemned”. However, they should by viewed now by history as equivalent in meaning to “censured” but applied to special cases where the financial duties of a senatorial office have been subject to gross neglect and where years of illegal activities by subordinates have been overlooked, if not encouraged. Thus, even though the Committee avoided the use of the word censure and even though the general historical precedents are strongly [sic], it none the less applied words defined in terms of “censure” to the misconduct of Senator Talmadge.[71]

From the full Senate consideration of the matter, it appears that a common opinion was that the term “denounce” was employed to recognize that there were “mitigating” circumstances involved in the case, and to recognize that it had not been concluded by the committee that the improprieties were engaged in by the Senator

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willfully and with actual knowledge, and thus the term “censure” would not be used.[72] The Senate Select Committee on Ethics in its report in the matter of Senator Durenberger did not state an express reason or justification for using the term “denounce” rather than “censure” or “condemn” in the resolution it recommended for adoption, although the special counsel’s report to the Committee suggested that the precise verb in a censure resolution is not as important as the Committee’s characterization of the conduct in a resolution which is then formally adopted by the full Senate.[73] During the Senate consideration of the resolution a member of the Select Committee on Ethics, Senator Lott of Mississippi, noted that an amendment offered during Committee procedures to substitute the term “censure” for “denounce” was defeated, and it was the Senator’s opinion that a “denouncement” was intended to be a lesser term of disapproval than a “censure” because of the mitigating circumstances and the lack of venal intent in the case.[74] Questions concerning the meaning of the term “denounce” employed in the resolution were directed to the Chairman of the Select Committee on Ethics, Senator Heflin of Alabama. The Chairman of the Committee, in an explanation somewhat similar to the one given by the Chairman of the Select Committee to Investigate Censure Charges in the McCarthy censure, explained that the actual term employed in the censure resolution voted on by the full body was a matter of semantics and personal interpretation, and that the action of the full Senate formally adopting a resolution using the term “denounce” was “within the broad parameters of the word `censure’: The denouncement terminology originated in the case of a former Senator from Georgia. The Parliamentarian, as I understand it, considered “denouncement” to be within the parameters of censure. I think some people in the instance of a Georgia Senator felt that the word “denouncement” was weaker than the word censure. Some, on the other hand, felt that it was stronger. I think it is more in the eyes of the beholder as to how you might view it. ... ... The major aspect of this is that the Senate as a whole acts. It acts to show its displeasure; it acts to show its disapproval in strong language, whether the language be denouncement, censure, or in one case condemnation. ... I think it is up to each individual to give whatever meaning and connotation he may wish. I would think that it falls within the broad parameters of the word “censure.”[75]

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Grounds for Censure The Constitution, in providing that either house of Congress may “expel” a Member by a two-thirds majority, does not specify the reasons for such expulsion, but does in that same provision state that either house of Congress may “punish its Members for disorderly Behavior.” Article I, Sec. 5, cl. 2. Some early commentators thus felt that the authority to “punish” a Member by way of censure or condemnation was thus expressly limited, unlike expulsion, to cases concerning disorderly or unruly behavior or conduct in Congress, that is, conduct which disrupts the institution.[76] The authority to discipline by way of censure, however, has come to be recognized and accepted in congressional practice as extending to cases of “misconduct”, even outside of Congress, which the Senate or House finds to be reprehensible and to reflect discredit on the institution, and which is, therefore, worthy of condemnation. As stated in S.Rept. 2508, 83d Cong., 2d Sess. 22 (1954) by the Senate Select Committee to Study Censure Charges:

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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.

The House of Representatives has similarly taken a broad view of its authority to discipline its Members by way of expulsion or censure. In the 63rd Congress the House Judiciary Committee described the power of the House to punish for disorderly behavior as a power which is “full and plenary and may be enforced by summary proceedings. It is discretionary in character ... restricted by no limitation except in case of expulsion the requirement of the concurrence of a two-thirds vote.”[77] In the report on Representative Adam Clayton Powell, the House Select Committee described censure cases as follows: Censure of a Member has been deemed appropriate in cases of a breach of the privileges of the House. There are two classes of privilege, the one, affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings; and the other, affecting the rights, reputation, and conduct of Members, individually, in their representative capacity.... Most cases of censure have involved the use of unparliamentary language, assaults upon a Member or insults to the House by introductions of offensive resolutions, but in five cases in the House and one in the Senate [as of 1969] 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. This discretionary power to punish for disorderly behavior is vested by the Constitution in the House of Representatives and its exercise is

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appropriate where a Member has been guilty of misconduct relating to his official duties, noncooperation with committees of this House, or nonofficial acts of a kind likely to bring this House into disrepute.[78]

The authority and grounds for censure, under the express Constitutional authority of the Senate, at Article I, Section 5, clause 2, as well as under the Senate’s own Rules[79] and precedents, thus extend to misconduct or improprieties which may or may not violate an express statute or a particular written rule of ethical conduct. Even when not a violation of a particular law or rule, the Senate has censured Members for conduct when found contrary to “acceptable norms of ethical conduct in the Senate,” contrary to “good” or “accepted morals” and “senatorial ethics,” when found to “derogate from the public trust expected of a Senator,” and/or for “reprehensible” conduct which brings the Senate into “dishonor and disrepute.”[80] It should be noted that prior to 1968 there were no written Senate ethics rules. Upon the drafting of a code of conduct in the Senate Rules for the first time in 1968, it was made clear that the drafting and existence of such an express, written code would not preempt nor supersede the existing, unwritten standards or norms of ethical behavior against which a Senator’s conduct has been and may always be judged.[81] The earlier resolution in 1964 establishing and authorizing the Select Committee on Standards and Conduct (now the Select Committee on Ethics) was expressly intended to give to and to continue within that committee that portion of the Senate’s traditional authority and jurisdiction to investigate, make findings, and report to the full body for consideration matters concerning official “misconduct” of Members, as well as violations of specific rules, codes, or statutes relating to official duties.[82] The Senate has “censured” Members for violating orders of secrecy of documents in their possession; for fighting in the Senate; for allowing a lobbyist with interests in particular legislation to be on one’s staff and on a committee considering such legislation, with access to the secret meetings and considerations of the committee; for non-cooperation and abuse of investigating committees of the Senate; and for financial irregularities concerning contributions, official expenses, and outside income.

REPRIMAND There is no precedent in the Senate for the full Senate to vote a resolution “reprimanding” a Member for misconduct, nor for any committee to recommend that

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the Senate “reprimand” a Senator, although such an action has been considered by the Senate and by at least one committee to which a disciplinary case was referred. In the censure case of the late Senator Thomas Dodd, Senator Tower introduced an amendment to substitute the word “reprimand” for that of “censure” in the resolution.[83] Senator Tower argued that this “would give us the opportunity to express our displeasure, our disapproval, and our disassociation, but at the same time avoid the severity of censure, which ... is one of the most severe penalties that we could impose.”[84] Senator Stennis, the Chairman of the Select Committee on Standards and Conduct, argued against using the term “reprimand,” contending that term had no historical context in Senate procedure and thus was without meaning in the Senate, and arguing that the term “censure” was appropriate to the facts and was less severe than using the term “condemn”:

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Mr. STENNIS. ... The matter was given as careful consideration as our capacity on the subject permitted; and we found that, uniformly, the legislative history of the United States had tended, for serious matters, always to use the word “censure” or the word “condemn”. We found that there was some precedent, in the House of Representatives, in connection with the use of the word “reprimand,” after passing a resolution of censure, to require the Member to present himself at the bar of the House and be publicly reprimanded there by the Speaker. [I]t has been the custom in the House of Representatives in a censure resolution to require the Member of the House, if he is so censured by resolution, to come down before the bar and be publicly “reprimanded” by word of mouth by the Speaker. However, that has never been done in the Senate. We did not like the idea of doing that. Members of the Senate, I will put this in this way, as to what we found as to the meaning of “reprimand” in legislative parlance. It just does not mean anything. It means what you might call just a slap on the wrist. It does not carry any weight. We looked and looked and looked, and we feel certain that our research was complete, and therefore we totally rejected, for the reason I have given, the mild legislative word “reprimand,” which has no meaning or means nothing more than just a disapproval, and put in the word “censure,” which we thought was the mildest of the words that have a legislative meaning, and would carry the idea of the Senate taking a stand with reference to the matter.[85]

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In the case of Senators Tillman and McLaurin who were “censured” by the full Senate in 1902 for fighting on the floor of the Senate, the Committee to whom the matter was referred considered the options for the Senate, including a “reprimand” of the Members which it considered “only a more formal reiteration [of an earlier contempt vote and] .. not sufficiently severe,” found that the conduct should be “condemned” by the Senate and recommended a resolution which “censured” the Members. The Committee explained:

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The Senate may punish the Senators from South Carolina by fine, by reprimand, by imprisonment, by suspension by 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.[86]

Prior to the 1970s in the House of Representatives, although there were some inconsistencies,[87] the terms “reprimand” and “censure” were often considered synonymous and used together in a resolution. In 1921, for example, a resolution adopted by the House instructed the Speaker to summon Representative Blanton of Texas to the bar of the House “and deliver to him its reprimand and censure”.[88] More recently, however, there has come to be a distinction in the House whereby it is considered that a “reprimand” involves a lesser level of disapproval of the conduct of a Member than that of a “censure”, and is thus a less severe rebuke by the institution.[89] Procedurally in the House, a “censure” resolution will generally instruct the Member to go to the well of the House and for the Speaker of the House to read the resolution as a verbal castigation of the Member. In the case of a “reprimand,” however, the resolution is merely adopted by a vote of the House.[90] Such procedures are not relevant to the Senate which merely adopts a censure resolution and does not require a Member to “go to the well” for a verbal rebuke.[91] A resolution which is adopted by a formal vote of the Senate using the word “reprimand” would thus have the same effect and be governed by the same procedures as a “censure” in the Senate, and might thus possibly be considered as a “distinction without a difference” in the Senate and, technically, a form of “censure” as have been the recent “denouncements” in the Senate. A resolution which uses the word “reprimand” in the Senate, although without historical precedent, might, however, be publicly perceived as similar to the modern House practice, that is, a minor rebuke, and may arguably be seen by the

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public as a lesser form of institutional disapproval or discipline than would the use of the words “condemn,” “censure,” or “denounce.” Although not a disciplinary action employed by the full Senate, the Select Committee on Ethics may issue, and has issued a “reprimand” or other similar form of rebuke, in a report or in a letter to a particular Member, which is not voted upon by the full Senate. The Senate Select Committee on Ethics issued such a “reprimand” in a report concerning Senator Cranston and the so-called “Keating Five” investigations in 1991. The Committee found that the Senator’s conduct “deserves the fullest, strongest and most severe sanction which the Committee has the authority to impose” and therefore the Committee “does hereby strongly and severely reprimand” the Senator.[92] The Committee reprimand was reported to the full Senate, and discussion was taken on the Senate floor regarding the Committee’s action, but no formal Senate action was required or taken by the full body. Under the current rules governing the Senate Select Committee on Ethics, the Committee may “dispose of” an ethics matter by issuing a “letter of admonition” after a preliminary inquiry (or after an adjudicatory review) if the Committee determines that a violation is “inadvertent, technical, or otherwise of a de minimis nature,” and that such public or private letter “shall not be considered discipline.”[93]

SENATE PRECEDENTS Expulsion 1. William Blount of Tennessee. July 8, 1797. Blount wrote a private letter to a United States Government interpreter seeking his aid in a plan to seize Spanish Florida and Louisiana with British and Indian help. A select committee found that Senator Blount’s conduct in attempting to incite the Indians against U.S. government officials was inconsistent with his public duty, amounted to a “high misdemeanor,” and recommended expulsion. The report was adopted 25 - 1. 2. James M. Mason and Robert M. T. Hunter of Virginia; Thomas L. Clingman and Thomas Bragg of North Carolina; James Chestnut, Jr. of South Carolina; A.O.P. Nicholson of Tennessee; William K. Sebastian[94] and Charles C. Mitchell of Arkansas; John Hemphill and Louis T. Wigfall of Texas. July 11, 1861. The resolution of expulsion was introduced on July 10, 1861, recognizing

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the attempt of some persons to withdraw certain states from the Union, who are “in arms against the Government,” and expressly charging that the above named Senators “have failed to appear in their seats in the Senate, and to aid the Government in this important crisis, and it is apparent to the Senate that said Senators 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.” The resolution was agreed to 32-10, July 11, 1861. 3. John C. Breckinridge of Kentucky. December 4, 1861. The resolution of expulsion provided that Breckinridge “has joined the enemies of his country, and is now in arms against the Government he had sworn to support,” and was agreed to 37 - 0.

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4. Jesse D. Bright of Indiana. February 5, 1862. Bright was charged with writing a letter in 1861 recommending an arms manufacturer to Jefferson Davis, President of the Confederacy, arguably demonstrating disloyalty to the United States. The Judiciary Committee considering the expulsion resolution recommended against expulsion; however, the full Senate after a lengthy debate voted to expel 32 - 14. 5. Waldo P. Johnson of Missouri. January 10, 1862. Resolution of expulsion was referred to the Judiciary Committee which found that Mr. Johnson’s failure to take his seat at the beginning of the session, and his failure to rebut allegations and indications of disloyalty to the Union, provide strong presumptive grounds against his fidelity to the Union. The expulsion resolution was adopted by a vote of 35 - 0. 6. Trusten Polk of Missouri. January 10, 1862. The Judiciary Committee reported the expulsion resolution which had been referred to it, concluding that Polk had written in a secession newspaper in favor of Missouri’s joining “her Southern sisters,” that he had failed to present himself to the Senate at the beginning of the session to rebut implications of disloyalty to the Union, and had in fact “gone clandestinely within the lines of the enemy” of the Union. The resolution of expulsion was adopted 36-0.

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Censure 1. Thomas Pickering of Massachusetts. January 2, 1811. Senator Pickering had made a speech on the floor of the Senate in which he read from a letter from the French Minister of Foreign Affairs, which was a confidential communication from the President to the Senate. Although there was then no written Senate rule concerning confidential communications,[95] the resolution charged Pickering with reading certain documents while the “Senate was in session with open doors” and concerning which “the injunction of secrecy not having been removed,” and in so doing committed a “violation of the rules of this body.” The resolution, after the Senate accepted an amendment striking the word “palpable” before the word “violation” and disagreed to an amendment seeking to add the word “unintentional” before the word “violation,” was agreed to by a vote of 20 - 7.

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2. Benjamin Tappan of Ohio. May 10, 1844. Tappan had delivered a document, furnished to the Senate under order of secrecy, to an individual to make available to the press. The resolution finally agreed to stated that Tappan, “in furnishing for publication in a newspaper documents directed by an order of the Senate to be printed in confidence for its use, has been guilty of a flagrant violation of the rules of the Senate and disregard of its authority.” The resolution was agreed to by a vote of 38 to 7. 3. John L. McLaurin and Benjamin R. Tillman of South Carolina. February 28, 1902. On the floor of the Senate on February 22, 1902, after having exchanged disparaging remarks directed towards one another, Tillman struck McLaurin in the face and they both fought until separated by several persons. Immediately after the incident a resolution was adopted by a vote of 61 - 0 declaring both Senators “in contempt of the Senate,” and referring the matter to the Committee on Privileges and Elections with instructions to report to the Senate what action should be taken. The Chair ruled that the Members would not be recognized unless on the motion of another Member and agreed to by a majority of the Senate. The Committee on Privileges and Elections then met and recommended a resolution of censure “for disorderly behavior and flagrant violation of the rules of the Senate during the open session of the Senate,” and that such Senators are “so censured for the breach of the privileges and dignity of this body.” The order of February 22 judging them in

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contempt was declared no longer in force or effect. The resolution for censure, and what amounted to, in effect, a six-day suspension, was agreed to by a vote of 54 - 12 on February 28, 1902. 4. Hiram Bingham of Connecticut. November 4, 1929. A special subcommittee of the Judiciary Committee investigated the facts concerning the Senator’s placing on the Senate payroll, first as his deputy and later as a clerk of a committee, an individual who worked as a paid employee for a trade association, the Manufacturers Association of Connecticut, having a direct interest in tariff legislation before that committee. The employee had access to secret committee deliberations because of his position. The subcommittee report (S.Rept. 43, 71st Cong., 1st Sess.) did not aver that the relationship violated any law or Senate rule. However, the chairman of the full Judiciary Committee introduced a resolution (S.Res. 146, 71st Cong.) condemning the actions of the Senator which “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.” The resolution was agreed to 54 - 22.

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5. Joseph R. McCarthy of Wisconsin. December 2, 1954. In 1951 and 1952 Senator McCarthy was under investigation by the Subcommittee on Privileges and Elections of the Rules and Administration Committee pursuant to a resolution of expulsion concerning conduct during an election, and since being elected to the Senate. Senator McCarthy first sought to bring formal charges against his accuser, and then challenged the investigation as designed to expel him “for having exposed Communists in Government.” Although the subcommittee eventually made no disciplinary recommendation, it criticized the Senator for deliberately setting out “to thwart the investigation.” In 1954 a resolution to censure Senator McCarthy was introduced and amended to include 46 separate counts of alleged misconduct. S.Res. 301, 83rd Cong., 2d Sess. The Select Committee to Study Censure examined censure in five categories of charges including contempt of the Senate and obstruction of the legislative process. S.Rept. 2508, 83rd Cong., 2d Sess. After floor debate, the full Senate voted to “condemn” McCarthy on two counts, for his “non-cooperation with and abuse of the Subcommittee on Privileges and Elections” in 1952 and for “abuse of the Select Committee to Study Censure.” The modified resolution was adopted by a vote of 67 - 22.

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6. Thomas J. Dodd of Connecticut. June 23, 1967. The Select Committee on Standards and Conduct investigated allegations of unethical conduct concerning the Senator’s relationship with a private businessman with interests in West Germany; the conversion of campaign contributions to personal use; the free use of loaned automobiles; and the acceptance of reimbursements from both the Senate and private sources. The Committee recommended censure on the use of campaign funds for personal purposes and the double reimbursements. Although no law nor Senate Rule prohibited the use of campaign funds for personal use, the Committee found that the testimonial dinners in question were political in character, and that the Senator was “presumed” to have knowledge of their political character, and thus should not have used the proceeds for his own personal purposes. S.Rept. 193, 90th Cong., 1st Sess. (1967). After debate on the resolution, and a rejection of Senator Tower’s amendment to substitute a “reprimand” for a “censure,” among other proposed amendments, Senator Dodd was censured for having engaged in a course of conduct of “exercising the influence and power of his office as a United States Senator ... to obtain, and use for his personal benefit, funds from the public through political testimonials and a political campaign.” Such conduct, although not violative of any specific law or Senate rule in force at that time was found “contrary to accepted morals, derogates from the public trust expected of a Senator, and tends to bring the Senate into dishonor and disrepute.” S.Res. 112, 90th Cong. The vote was 92 - 5. 7. Herman E. Talmadge of Georgia. October 11, 1979. The Select Committee on Ethics investigated charges of financial irregularities in the office of Senator Talmadge, concerning excess official reimbursements, inaccurate financial disclosure and reporting, failure to timely and properly file campaign disclosures, and the personal use of campaign funds, potentially in violation of various federal laws and Senate rules. The Committee found that Senator Talmadge “either knew, or should have known, of these improper acts and omissions, and, therefore, by the gross neglect of his duty to faithfully and carefully administer the affairs of his office, he is responsible for these acts and omissions.” S.Rept. 96-337, 96th Cong., 1st Sess. 18 (1979). The Committee recommended a finding to the full Senate that the conduct is “reprehensible and tends to bring the Senate into dishonor and disrepute and is hereby denounced.” The Senate adopted S.Res. 249 by a vote of 81 - 15. A “denouncement” was expressly recommended because the Committee felt that the facts were “distinguishable from those of earlier matters in which the Senate

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`censured’ or `condemned’ a Member”, and that the judgment of the Committee and the Senate concerning such conduct could be made using “words that do not depend on analogy to dissimilar historical circumstances for interpretation.” S .Rept. 96-337, supra at 18. The action of the Senate formally adopting a resolution disapproving of conduct by way of “denouncing” the Member’s conduct, is categorized by historians and parliamentarians in the Senate as a “censure” of that Member.[96]

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8. David F. Durenberger of Minnesota. July 25, 1990. The Select Committee on Ethics recommended to the full Senate a “denouncement” of the Member, referral of the matter to the Senator’s party conference “for attention,” and restitution of certain moneys from the Senator for “knowingly and willingly” engaging in conduct “which was in violation of statutes, rules and Senate standards and acceptable norms of ethical conduct.” S.Rept. 101382, 101st Cong., 2d Sess. 14 (1990). The two principal findings by the Committee concerned (1) “a mechanism to evade the statutory limits on honoraria” through a publishing and “book promotion” arrangement with a publisher whereby fees charged groups before whom the Senator made traditional honoraria-type appearances were directed to the publisher who would in turn pay the Senator quarterly “stipend” payments, ostensibly for book “promotions,” which exceeded the statutory honoraria limits; and (2) for abuse of the Senator’s office and misuse of funds through a pattern of concealment and other conduct indicating an absence of good faith in receiving official Senate reimbursements “for staying in a condominium which was essentially his personal residence.” S.Rept. 101-382, supra at 11, 13-14. The Committee also made findings of violations concerning failure to disclose travel reimbursements from private parties; improper acceptance of gifts of travel from persons with interests in legislation; and improper conversion of campaign contributions to personal use. The full Senate accepted the Committee’s recommendation in S.Res. 311, 101st Congress, on July 25, 1990 by a vote of 96 - 0. As noted above, the action of the Senate formally adopting a resolution disapproving of conduct by way of “denouncing” the Member’s conduct, is categorized by historians and parliamentarians in the Senate as a “censure” of that Member.[97]

CONCLUSION Expulsions in the United States Senate, as well as in the House of Representatives, have been generally reserved for the most serious misconduct of a Member of Congress, historically concerning disloyalty to the government, or the

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conviction (or evidence) of an offense involving official corruption and/or the abuse of one’s official position in Congress. Other than expulsion, a formal “censure” by the Senate is the strongest statement of disapproval and rebuke that the Senate, as an institution, invokes upon one of its Members. It may be possible that in addition to a formal censure the Senate may also require financial restitution from a Member, limit a particular privilege of a Member, or under current practice, recommend to the appropriate party conference the diminution of seniority status of a Senator. Although there is no specific disability that automatically follows a censure by the Senate, the public reprobation and formal rebuke by one’s peers in the Senate may have arguably contributed to the unsuccessful reelection efforts of Senators subject to censure in recent times.[98] The action of the full United States Senate formally adopting, by a vote requiring the majority of Members present and voting, a resolution disapproving of a Senator’s conduct is considered by parliamentarians and historians as a “censure” of that Member. There is no precise, technical requirement concerning the required words in a resolution of censure, nor is there an official “hierarchy” or ranking of terms employed in such a resolution. The Senate has thus “censured” its Members by way of a resolution “condemning”, “censuring” or “denouncing” the Member or the conduct of the Member, as well as by way of resolutions which do not include any express term of opprobrium. In practice and perception, however, although there is no official ranking or officially recognized hierarchy of terms employed, it may be contended that the connotation of the verb “condemn” in a censure resolution is more severe than the term “censure,” based in large part on the association of the term “condemn” with the discipline imposed by the Senate on the late Senator Joseph McCarthy; while the connotation of the term “denounce” in a censure resolution may be one of a less severe form of “censure” because of extenuating or mitigating circumstances that have been recognized in past disciplinary actions adopting that particular term. The authority and grounds for censure extend to misconduct which may or may not violate an express statute or a written Senate ethics rule. The full Senate has thus censured Members when the conduct was found to be contrary to “acceptable norms of ethical conduct in the Senate”, contrary to “good” or “accepted morals” and “senatorial ethics”, to “derogate from the public trust expected of a Senator”, and/or to be “reprehensible” conduct which brings the Senate into “dishonor and disrepute.”

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REFERENCES [1]

[2]

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[3]

[4]

[5]

[6]

[7] [8]

Justice Joseph Story, Commentaries on the Constitution of the United States, Vol. II, § 835 (Boston 1883); see discussion in Deschler’s Precedents of the United States House of Representatives, H. Doc. 94-661, Volume 3, Ch. 12, § 12, p. 168 (1979). Cushing, The Law and Practice of Legislative Assemblies, pp.250-251, 257259, 268-270 (Boston 1874). Internal disciplinary action is “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.” Deschler’s Precedents, supra at 174, citing Powell v. McCormack, 395 F.2d 577, McGowan concurring, at 607 (D.C.Cir. 1968), rev’d on other grounds, 395 U.S. 486 (1969); Story, supra at § 835. Note British Parliamentary practice: “The practice of expulsion is not so much disciplinary as remedial, not so much to punish Members as to rid the House of persons who are unfit for membership.” Erskine May, Law, Privileges, Proceedings and Usage of Parliament, at 105 (London 1964). Senate or House discipline does not foreclose a criminal prosecution on the same matter, nor does criminal prosecution bar subsequent congressional discipline as “double jeopardy.” United States v. Rose, 28 F.3d 181, 189-190 (D.C.Cir. 1994); 2 Op. Atty. Gen. 655 (1834); United States v. Traficant, 368 F.3d 646 (6th Cir. 2004), cert. denied, 543 U.S. 1055 (2005). Alexander Hamilton, II Eliot’s Debates 257; note also James Madison, 2 Farrand, Records of the Federal Convention of 1787, 249-250, and Federalist Papers, No. 57; Powell v. McCormack, 395 U.S. 486, 508, 509, 531 (1969). See footnote 2, supra; Story, supra at § § 835-836. Note also Senator John Quincy Adams’ arguments in 1807 on Senate’s authority to expel a Member even after re-election, II Hinds’ Precedents of the House of Representatives, § 1264, p. 817 (1907). For a complete list of Senate precedents prior to 1990, see generally S. Doc. 103-3 3, Butler and Wolff, Senate Historical Office, United States Senate Election, Expulsion and Censure Cases, 1793-1990 (1995) and S. Doc. No. 92-7, 92d Cong., 1st Sess., Senate Election, Expulsion and Censure Cases from 1793 to 1972 (1972). Standing Orders of the Senate, Senate Manual, § 80 (S.Res. 338, 88th Cong., Section 2(a), as amended). S.Res. 338, as amended, supra at Section 2(d)(3) and 2(a)(4).

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[10]

[11] [12]

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[13] [14]

[15] [16]

[17]

[18] [19]

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This is distinguished from an “exclusion” by majority vote prior to the taking of the oath of office and seating of a Member-elect, note Powell v. McCormack, 395 U.S. 486 (1969). (Several Senators from southern states who had not shown up to take their seats, however, were “expelled” during the Civil War period.) See Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practices, at p. 683 (1992), e.g., two-thirds vote requirement for Constitutional Amendments. In House, see Brown, House Practice, Guide to the Rules, Precedents and Procedures of the House, 108th Cong., “Voting,” at § 28, p. 935: “A two-thirds vote ordinarily means two-thirds of those voting, a quorum being present, and not two-thirds of the entire membership.” Story, supra, at Volume II, §836; May, The Law, Privileges, Proceedings and Usage of Parliament, supra at 104 -106. An “exclusion,” under the authority of Art. I, Section 5, cl. 1 of the U.S. Constitution for each House to judge the “Elections, Returns and Qualifications of its own Members,” is now understood not to be a disciplinary procedure addressing “fitness” or “character” of a Member-elect. See Powell v. McCormack, supra at 522, Deschler’s Precedents, supra at Ch. 12, §12, p. 169, n. 21. Article I, Section 3, cl. 3 for Senators (and Art. I, Section 2, cl. 2 for House Members). Challenging the election of a Member-elect in the Senate is generally conducted under the procedures for contested elections cases. See Office of Senate Legal Counsel, Contested Election Cases (October 2006). As for the House, see the Federal Contested Elections Act, 2 U.S.C. §§ 38 1-396. Note also, CRS Report RL33780, Procedures for Contested Election Cases in the House of Representatives, by Jack Maskell and L. Paige Whitaker. 395 U.S. at 522; see also 395 U.S. at 550. Deschler’s Precedents Volume 2, Chapter 7, § 9, at 98. Note, for example, the Senate consideration of the case of Senator-elect Arthur R. Gould of Maine, in 1926, concerning allegations of bribery of a foreign official in 1910 in a business deal. Case No. 111, Senate Election, Expulsion and Censure Cases, S. Doc. 103-33, supra. Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel An Exercise in Self Restraint,” 29 Syracuse Law Review 1071, 1089-1090 (1978). Story, supra at § 836. II Hinds’ Precedents, supra at §1263.

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[20] 166 U.S. 661, 669-670 (1897). [21] United States v. Brewster, 408 U.S. 501, 519 (1972). [22] Powell v. McCormack, supra at 520-522; Baker v. Carr, 369 U.S. 186, 211, 217 (1962). It should be noted that as to impeachment in the Senate, the Supreme Court found as a non- justiciable “political question,” a challenge to the Senate’s impeachment proceedings under Article I, Section 3, cl. 6. The Court in Nixon v. United States, 506 U.S. 224 (1993), found that the claims of the federal judge-petitioner were nonjusticiable under the political question doctrine and its separation of powers implications, as the Court found “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Since these are matters specifically assigned in the Constitution to the Senate, the Senate has broad discretion in establishing the procedures that it uses, and the courts would not review such procedures absent a conflict with another specific section of the Constitution. [23] In Powell v. McCormack, the House’s exclusion was found to contravene the qualifications clause in Article I, Section 2, cl. 2. [24] Bond v. Floyd, 385 U.S. 116, 131 (1966). [25] 395 U.S. at 553. [26] Deschler’s Precedents, supra at Ch. 12, § 13, p. 176. In the House, see H.Rept. 94-1477, at 2, In the Matter of Representative Andrew J. Hinshaw (1976). The House Committee on Standards of Official Conduct recommended against expulsion of a Member, since the Member’s conviction “while reflecting on his moral turpitude, does not relate to his official conduct while a Member of Congress.” [27] See, e.g., discussion in S.Rept. No. 2508, 83rd Cong., 2d Sess. 20-23, 30-3 1, concerning McCarthy censure; and H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969), recommending seating and then censure of Representative Powell. [28] 395 U.S. at 508-509, citing to the Rules of House, 90th Congress. [29] 395 U.S. at 509, quoting the committee report in the expulsion case of John W. Langley. [30] 395 U.S. at 507, n. 27; 510, n.30 [31] 395 U.S. at 553. [32] The expulsion case of John W. Langley, H.Rept. 30, 69th Cong., 1st Sess. (1925), see VI Cannon’s Precedents, supra at § 238, p. 407. [33] Id. [34] See, for example, Report of the Judiciary Committee on the proposed expulsion of Representatives King and Schumaker, H.Rept. 815, 44th Cong., 1st Sess. 2 (1876), cited in Powell v. McCormack, supra at 509, n. 29,

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[35] [36] [37] [38] [39]

[40]

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[41] [42] [43] [44] [45]

[46] [47]

[48]

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asserting that “the House of Representatives has no authority to take jurisdiction of violations of law or offenses committed against a previous Congress.” See also Committee Print, Joint Committee on Congressional Operations, House of Representatives Exclusion, Censure and Expulsion Cases from 1789 to 1973, 93rd Cong., 1st Sess. 122 (1973). Riddick’s Senate Procedure, supra at 1220. S.Rept. 2508, 83rd Cong., supra at 22. H.Rept. 77, 42nd Cong., 3rd Sess. (1872) and H.Rept. 82, 42d Cong., 3rd Sess. (1872). House Exclusion, Censure and Expulsion Cases from 1789 to 1973, supra at 125. Note majority and minority opinions in expulsion cases of William S. King and John Schumaker, H.Rept. 815, 44th Cong., 1st Sess. (1876), II Hinds’ Precedents, supra at § 1283, and in expulsion case of Orsamus B. Matteson, H.Rept. 179, 35th Cong., 1st Sess. (1858), II Hinds’ Precedents § 1285. See footnote 4 of this report, supra. Note also discussion of the infamous “Wilkes case” in England, shortly before the time of the drafting of the United States Constitution. Powell v. McCormack, supra at 532-535; May, supra at 107. Story, supra at § 835. Cushing, supra at § 625; Deschler’s Precedents, supra at Ch. 12, §13, p. 175. II Hinds’ Precedents supra, at § 1264, p. 817. The expulsion vote to receive the required two-thirds. H.Rept. 570, 63rd Cong., 2d Sess. (1914), at VI Cannon’s Precedents, supra at § 398. Emphasis added. “Congress has demonstrated a clear reluctance to expel when to do so would impinge ... on the electoral process.” Bowman and Bowman, supra at 1101. Madison, The Federalist Papers, No. 57. See Senate expulsions of Blount (1797), Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862), Polk (1862); House expulsions of Clark of Missouri (1861), Reid of Missouri (1861), and Burnett of Kentucky (1861). The Senate in 1981 considered the expulsion of Senator Harrison A. Williams, of New Jersey, recommended by the Senate Select Committee on Ethics (S.Rept. 97-187, 97th Cong., 1st Sess. (1981)), after the Senator’s conviction of bribery, illegal gratuities, conflicts of interest and conspiracy in

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[49]

[50]

[51]

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[52]

[53]

[54]

[55]

Jack Maskell the so-called ABSCAM influence peddling probe. For House practices, see modern expulsion of Representatives Myers (H.Rept. 96-1387 (1980)) and Traficant (H.Rept. 107-594 (2002)), as well as committee recommendations of expulsion for Representatives Lederer (H.Rept. 97-110 (1981)) and Biaggi (H.Rept. 100-506, (1988)), after corruption convictions. S . Rep. 104-137 (1995), Resolution for Disciplinary Action (re: Senator Packwood). The Senator resigned from office prior to full Senate consideration. Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862), Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra. Senator William Blount of Tennessee, July 8, 1797, United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5. See, for example, recommendation of expulsion of Senator Williams (S. Rep. No. 97-187, supra), after the Senator’s conviction in the so-called ABSCAM influence peddling probe, and Senator’s subsequent resignation prior to final Senate floor consideration. Note Riddick and Fruman, Riddick’s Senate Procedure, S. Doc. No. 101-28, supra at 270. Additionally, Senator Packwood resigned in 1995 after the Senate Select Committee on Ethics recommended expulsion in S. Rep. 104-137 (1995). Note modern expulsions of Representative Myers (H.Rept. 96-1387 (1980)) and Representative Traficant (H.Rept. 107-594 (2002)). See generally, CRS Report RL3 1382, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, by Jack Maskell. S.Rept. 97-187, supra at 10. The Senate Select Committee on Ethics stated that its unanimous recommendation of expulsion “reflects its strong conviction that its own determination of this matter, and that of the Senate, must be made independently of the jury’s verdict,” or the outcome of the appeal. Although the Committee proceeded in its investigation, and found that it had a basis independent of the judicial proceedings to pursue legislative discipline, the Committee recommended “that the Senate proceed expeditiously to final disposition of the foregoing resolution only when Judge Pratt has ruled on the aforesaid motions.” Senate Rep. No. 97- 187, supra at 11.

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[56] See Congressional Quarterly, Congressional Roll Call 1981, at pp. 20S 77S, and Congressional Roll Call 1982, at pp. 2S - 11S, concerning recorded Senate votes subsequent to May 1, 1981, until March 11, 1982. [57] See, for example, discussion in Deschler’s Precedents, supra, Volume 1, at vi - viii. [58] Senate Manual, Section 79, S.Res. 338, 88th Cong., Sec. 2(a)(2), as amended. In addition to expulsion and censure it is possible, and arguably within the authority of the Senate, to punish a Member by way of fine, imprisonment, suspension of privileges, or deprivation of seniority status. Note Senate Report on Tillman-McLaurin censure, II Hinds’ Precedents, supra at § 1655, p. 1140; Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States of America, § § 675-684 (1856); Kilbourn v. Thompson, 103 U.S. 168, 189-190 (1881); Deschler’s Precedents, supra, Ch. 12, §§13-18. [59] Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practices, S. Doc. No. 101-28, 101st Cong., 2d Sess. 270-273 (1992); note also S. Doc. No. 92-7, 92d Cong., 1st Sess., Senate Election, Expulsion and Censure Cases from 1793 to 1972 (1972); Deschler’s Precedents, H. Doc. No. 94-661, 94th Cong., 2d Sess., Ch. 12, §16, at 193-194, n.10, §§16.2, 16.3. [60] Censure of Timothy Pickering of Massachusetts, S. Journal, 11th Cong., 3rd Sess., pp. 535, 536 (January 2, 1811). [61] Censure of Benjamin Tappan of Ohio, S. Journal, 28th Cong., 1st Sess. App. pp. 441-442 (May 10, 1844). [62] Senator Archer, S. Journal, 28th Cong., 1st Sess. App. 440 (May 8, 1844). [63] As noted in S. Doc. 92-7, supra at 128, the Chairman of the Judiciary Committee which had investigated the matter concerning Senator Bingham “offered a resolution of censure (S.Res. 146) condemning Senator Bingham for his conduct.” One Senator noted that “I propose by my vote to censure those acts” (71 Cong. Rec. 5130, November 4, 1929, Mr. Walsh). One of the main contentions in the Bingham censure appeared to concern substituting the term “disapproved” for “condemned.” As noted by Senator Pittman: “I think the charge here is simply a condemnation of what he did. ... You may use the word `disapprove’ or you may use the word ‘condemn’; but what is the difference between disapproving conduct and condemning conduct? The only difference that I see is that ‘condemning’ is a stronger word than ‘disapproving.’” 71 Cong. Rec., supra at 5120, 5121. [64] S.Rept. 2508, supra at 67 [65] S.Res. 301, 83rd Cong., 2d Sess. [66] 100 Cong. Rec. 16369, December 2, 1954.

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[67] Mr. WELKER. Being a practitioner of law, as is the Senator from Utah, he certainly knows that a man is never censured to death. On the contrary, a man is condemned to death. That indicates the difference between the two words. Mr. WATKINS. Very well; I accept that effort on the part of the Senator from Idaho to clarify the difference between the meaning of the two words. 100 Cong. Rec. 16369, December 2, 1954. [68] “We debated, at considerable length, the use of the word `censure’ or the word `condemn.’ Speaking first for myself, I was convinced that the historic term and the proper term to suit these facts was the word `censure’ rather than `condemn.’ I thought that the word `censure’ was not as hard a word, not as severe a word, as the word `condemn.’” 113 Cong. Rec. 16979 (June 22, 1967). [69] See Riddick, Senate Procedure, Precedents and Practices, S. Doc. No. 97-2, 97th Cong. 1st Sess. at 219-220 (1981); and Riddick’s Senate Procedure, Revised and Edited by Allan Fruman, Parliamentarian, S. Doc. No. 101-28, at 270. [70] S.Rept. 96-337, supra at 18. [71] S.Rept. No. 96-337, supra at 148-149. [72] 125 Cong. Rec. 27768, 27785,-27786, 27789 (October 11, 1979). Note, for example, comments of Senator Hollings: “I know the gentleman discussed what word to use at length, and they did save my good friend from censure, and instead recommended that he be denounced.” Id. at 27785. [73] S.Rept. No. 101-382, at 106 (1990). [74] “Ezra Pound once spoke of `language charged with meaning.’ I think the commitment to recommend denouncement rather than censure was for a reason. Although our rules mention only censure and expulsion, this history of the Senate shows that there are in effect different levels of punishment. Past cases have resulted in what amounts to a letter of reproval by the committee as well as denouncement, condemnation, censure and expulsion by the full Senate. In this case the committee chose denouncement instead of censure, largely because, I think, of the mitigation that was present and because, as the defense counsel emphasized in our public hearings, there was no venal intent.” 136 Cong. Rec. S 10564 (daily ed.), July 25, 1990. [75] 136 Cong. Rec. S 10568-69 (daily ed. July 25, 1990). [76] Note, for example, discussion in 29 Syracuse Law Review, supra at 1089 1091, citing Rawle, View of the Constitution of United States 46-47 (2nd ed. 1829). [77] H.Rept. 570, 63rd Cong., 2d Sess. (1914).

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[78] H.Rept. 27, supra at 24-26, 29. [79] Standing Orders of the Senate, Senate Manual, Section 79, derived from S.Res. 338, 88th Cong., 2d Sess., Sec. 2(a) (1964), as amended. [80] Note, for example, Senate approval of “resolution of censure (S .Res. 146 [71st Cong. 1929]) condemning Senator Bingham” for conduct which is “contrary to good morals and senatorial ethics and tends to bring the Senate into dishonor and disrepute,” S. Doc. No. 92- 7, supra at case 160; adoption of S.Res. 301, 83rd Congress, censuring Senator McCarthy for conduct which was (Sec. 1) “contrary to senatorial traditions” and (Sec. 2) “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”; adoption of S.Res. 112, 90th Cong., censuring Senator Dodd for a pattern of conduct which was found “contrary to accepted morals, derogates from the public trust expected of a Senator and tends to bring the Senate into dishonor and disrepute”; S.Res. 311, 101st Cong., denouncing Senator for a pattern of conduct found “reprehensible” and which “brought the Senate into dishonor and disrepute,” based on violations of statutes, rules, and “acceptable norms of ethical conduct.” [81] Note preamble to S.Res. 266, 90th Cong., Standing Orders of the Senate, §79.6, and Senate consideration of Code of Conduct at 114 Cong. Rec. 6833 (March 18, 1968), comments of the Chairman of the Select Committee, Senator Stennis: “We do not pretend to displace those backgrounds of precedents concerning standards and trust and the fiduciary relationship of the Senate with the people and a Senator’s obligations. We do not try to write a full code of regulations. However, we do set forth in the very beginning that our effort is merely to add rules and not to replace that great body of unwritten but generally accepted standards that will, of course, continue in effect.” [82] In consideration and passage of S.Res. 338, 88th Cong., the Senate adopted a substitute proposal by Senator John Sherman Cooper to establish a permanent Select Committee with authority, as explained by Senator Cooper, to “receive complaints of illegal and unethical conduct .. and then if required, recommend to the Senate proper disciplinary action.” 110 Cong. Rec. 16930 (July 24, 1964). As stated by a supporter of the substitute measure, “unlike the resolution in its original form, ... the proposal would not be limited to alleged violations of Senate rules, but, it would take into account all improper conduct of any kind whatever.” 110 Cong. Rec., supra at 16933 (Senator Case). [83] 113 Cong. Rec. 16978 (June 22, 1967).

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[88] [89]

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[90] [91]

[92] [93] [94]

[95] [96]

[97]

[98]

Jack Maskell Id. at 16979. 113 Cong. Rec. 16979, 16984 (June 22, 1967). II Hinds’ Precedents, supra at §1665, pp. 1140-1 142. Note II Hinds’ Precedents of the House of Representatives, Sec. 1257, 47th Cong., 1st Sess. 1882; II Hinds’, supra at Sec. 1666, 39th Cong., 1st Sess. (1866). VI Cannon’s Precedents of the House of Representatives, §236, 67th Cong., 1st Sess. Deschler’s Precedents, Ch. 12, § 16, p. 196 (“a somewhat lesser punitive measure than censure”); see also Cushing, supra at 266-269, for historical context. Deschler’s Precedents, supra. In 1844 the resolution of censure for Senator Tappan of Ohio had originally stated that the Senator has “incurred the just censure of the Senate, and shall receive its reprimand through the Presiding Officer, who is hereby directed to give the same in the presence of the Senate.” S. Journal, 28th Cong., 1st Sess. App. 441 (1844). After debate in executive session, however, the resolution finally adopted merely stated that the Senator “has been guilty of flagrant violation of the rules of the Senate and disregard of its authority.” S. Journal, supra; Executive Journal, 28th Cong., 1st Sess., 271-272 (May 10, 1844). No precedent for requiring the Presiding Officer to give a verbal rebuke or “reprimand” to a Senator, either before the Senate or standing in his place in the Senate, has been found. S.Rept. 102-223, 102d Cong., 1st Sess., at 36 (1991). S.Res. 338, 88th Cong., as amended, Section 2(d)(3). The resolution of expulsion as it pertained to William K. Sebastian was “revoked and annulled” by the Senate, on March 3, 1877, note S.Rept. 513, 44th Cong., 1st Sess. See Senate Election, Expulsion and Censure Cases, supra at 30. S. Doc. 92-7, supra at 6. See Riddick, Floyd M. (Parliamentarian Emeritus), Senate Procedure, Precedents and Practices, S. Doc. No. 97-2, 97th Cong., 1st Sess. 219 (1981); Fruman and Riddick, Riddick’s Senate Procedure, S. Doc. No. 10 1-28, at 270 (1992). Riddick’s Senate Procedure, S. Doc. No. 101-28, supra at 270. Subsequent to the Senate action, Senator Durenberger in 1995 was indicted and pleaded guilty to a misdemeanor charge of misuse of public funds. Senator Bingham, censured in 1929 was an unsuccessful candidate for reelection in 1932; Senator McCarthy, censured in 1954, died in 1957 while

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serving out his term of office; Senator Thomas Dodd, censured in 1967, was an unsuccessful candidate for re-election in 1970; Senator Talmadge, denounced in a censure resolution in 1979, was defeated for reelection in 1980; Senator Durenberger, denounced in a censure resolution in 1990, announced on September 16, 1993, that he would not seek re-election. Note Biographical Directory of the United States Congress, 1774 - 1989, S. Doc. No. 100-34 (1989).

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Chapter 2

STATUS OF A SENATOR WHO HAS BEEN INDICTED FOR OR CONVICTED OF A FELONY *

ABSTRACT

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There are no federal statutes or Rules of the Senate that directly affect the status of a Senator who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, nor the Rules of the Senate upon an indictment. Thus, under Senate Rules, an indicted Senator may continue to participate in congressional proceedings and considerations; and under the Constitution a person under indictment is not disqualified from being a Member of or a candidate for reelection to Congress. Internal party rules in the Senate may, however, provide for certain steps to be taken by an indicted Senator. For example, the Senate Republican Conference Rules require an indicted chairman or ranking member of a Senate committee, or a member of the party leadership, to temporarily step aside from his or her leadership or chairmanship position. Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. No express constitutional disability or “disqualification” from Congress exists for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct by someone who has taken an oath of office to support the Constitution. Unlike Members of the House, Senators are not instructed by internal Senate Rules to refrain from voting in committee or on the Senate floor once they have been convicted of a crime which carries a particular *

This is an edited, excerpted and augmented edition of a Congressional Research Service Publication RL34716, dated October 22, 2008.

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Jack Maskell punishment. Internal party rules in the Senate may affect a Senator’s position in committees. Under the Senate Republican Conference Rules, for example, Senators lose their chairmanships of committees or ranking member status upon conviction of a felony. Conviction of certain crimes may subject — and has subjected in the past — Senators to internal legislative disciplinary proceedings, including resolutions of censure, as well as an expulsion from the Senate upon approval of two-thirds of the Members. Conviction of certain crimes relating to national security offenses would result in the Member’s forfeiture of his or her entire federal pension annuity under the provisions of the so-called “Hiss Act” and, under more recent provisions of law, conviction of particular crimes by Members relating to public corruption will result in the loss of the Member’s entire “creditable service” as a Member for purposes of calculating their federal retirement annuities. This report summarizes the potential consequences, with respect to congressional status, that may result when a sitting Senator is indicted for or is convicted of a felony.[1]

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BACKGROUND If a sitting Member of Congress is indicted for a criminal offense that constitutes a felony, the status and service of that Member is not directly affected by any federal statute or Rule of the Senate. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the Senate merely upon an indictment for an offense. Internal party rules in the Senate may be relevant, however, and the Senate Republican Conference Rules now require an indicted chairman or ranking member of a Senate committee, or a member of the Senate party leadership, to temporarily step aside from his or her leadership or chairmanship position, although the Member’s service in Congress would otherwise continue. It should be noted that Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. There is no express constitutional disability or “disqualification” from Congress for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct. Under party rules, Members may lose their chairmanships of committees or ranking member status upon conviction of a felony, and this is expressly provided under the Senate Republican Conference Rules. Conviction of certain crimes may subject Senators to internal legislative disciplinary proceedings, including resolutions of censure, as well as expulsion from the Senate upon approval of twothirds of the Members. Expulsion of a Member from Congress does not result in the

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forfeiture or loss of one’s federal pension, but the Member’s conviction of certain crimes may lead to such forfeiture of retirement annuities, or the loss of all of the “creditable service” as a Member that one would have earned towards a federal pension.

SERVICE IN CONGRESS: QUALIFICATIONS FOR HOLDING OFFICE

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Indictment and/or conviction of a crime that is a felony does not constitutionally disqualify one from being a Member of Congress (nor from being a candidate for a future Congress), unless a Member’s conviction is for certain treasonous conduct committed after taking an oath of office to support the Constitution.[2] There are only three qualifications for congressional office, which are set out in the United States Constitution at Article I, Section 3, clause 3 for Senators (and Article I, Section 2, clause 2, for Representatives): age, citizenship, and inhabitancy in the state when elected. These constitutional qualifications are the exclusive qualifications for being a Member of Congress, and they may not be altered or added to by Congress or by any state unilaterally.[3] Once a person meets those constitutional qualifications, that person, if elected, is constitutionally “qualified” to serve in Congress, even if under indictment or a convicted felon.[4]

COMMITTEE CHAIRMANSHIPS AND LEADERSHIP POSITIONS No specific or formal Rule of the Senate exists concerning the status of Senator who has been indicted with respect to chairmanships or ranking member status on committees of the Senate. However, the political parties in the Senate may adopt internal conference and caucus rules that may affect a Senator’s leadership and committee positions and assignments. For example, Senate Republican Conference Rules provide for the temporary loss of one’s position as the chairman or ranking member of a committee, and the temporary loss of one’s leadership position, if the Senator has been indicted for a felony; and if the Senator is convicted, the replacement of the chair/ranking member on the committee.[5]

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REFRAINING FROM VOTING IN CONGRESS AFTER CONVICTION Although Members of the House of Representatives convicted of an offense that may result in two or more years imprisonment are instructed under House Rule XXIII (10), to “refrain from participation in the business of each committee of which he is a member, and a Member should refrain from voting” on any question on the floor of the House until his or her presumption of innocence is restored (or until the individual is reelected to Congress), there is no comparable Senate Rule.[6]

CONGRESSIONAL DISCIPLINE

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Indictment Each House of Congress has the express authority, under Article I, Section 5, clause 2, of the United States Constitution, to punish a Member for “disorderly Behaviour” and, with the concurrence of two-thirds, to expel a Member. Although the breadth of authority and discretion within the Senate and House as to the timing, nature, and underlying conduct involved in an internal discipline of a Member of that body is extensive, the traditional practice in Congress, in cases where a Member of Congress has been indicted, has been to wait to impose congressional discipline, such as expulsion or censure against the Member until the question of guilt has been at least initially resolved through the judicial system.[7] Members of Congress, of course, like many other individuals, have been indicted and charged with various offenses and then been subsequently exonerated in judicial proceedings. Both the Senate and the House have thus been reluctant to remove from Congress individuals who have been lawfully elected to represent their constituents, based merely upon charges in an indictment. However, no impediment in law or rule exists for ongoing congressional inquiries concurrent with criminal proceedings (although such actions may complicate some evidentiary issues in subsequent judicial proceedings, and certain internal, concurrent congressional inquiries have in the past been postponed or partially deferred because of arrangements with the Department of Justice[8]). An attempt to mandatorily suspend an indicted or convicted Member from voting or participating in congressional proceedings raises several issues. In general, elected Senators are not in the same situation as persons appointed to positions in the government with indefinite tenure, nor as private professionals, who might be

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suspended for a period of time merely upon suspicion or charges being levied, because Members of Congress are directly elected by, answerable to, and personally represent the people of their state or district in the Congress. The authority of either House to mandatorily suspend a Member from participation in congressional business has thus been questioned on grounds of both policy and power because such action would, in effect, disenfranchise that Member’s constituency, deprive the people of their full constitutional representation in Congress, and would not allow the constituents to replace a Member, such as they could after an expulsion action.[9]

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Conviction Conviction of a crime may subject a Member of the Senate to internal disciplinary action, including a resolution for censure of the Member, up to and including an expulsion from Congress upon a two-thirds vote of the Members of the Senate present and voting. The Senate has demonstrated that in cases of conviction of a Member of crimes that relate to official misconduct that the institution need not wait until all the Senator’s appeals are exhausted, but that the Senate may independently investigate and adjudicate the underlying factual circumstances involved in the judicial proceedings, regardless of the potential legal or procedural issues that may be raised and resolved on appeal.[10] No specific guidelines exist regarding actionable grounds for congressional discipline under the constitutional authority of each House to punish its own Members. Each House of Congress has significant discretion to discipline misconduct that the membership finds to be worthy of censure, reprimand, or expulsion from Congress.[11] When the most severe sanction of expulsion has been actually employed in the Senate (and in the House of Representatives), however, the conduct has historically involved either disloyalty to the United States or the violation of a criminal law involving the abuse of one’s official position, such as bribery.[12] In the United States Senate, 15 Senators have been expelled, 14 during the Civil War period for disloyalty to the Union (one expulsion was later revoked by the Senate),[13] and one Senator was expelled in 1797 for other disloyal conduct.[14] Although the Senate has actually expelled relatively few Members, and none since the Civil War, other Senators, when facing a recommended expulsion for misconduct, have resigned their seat rather than face the potential expulsion action.[15] In addition to expulsion, the Senate as an institution may take other disciplinary actions against one of its Members, including censure or fine. The Senate, like the House of Representatives, has taken a broad view of its authority to censure or

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Jack Maskell

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otherwise discipline its Members for any conduct that the Senate finds to be reprehensible and/or to reflect discredit on the institution and which is, therefore, worthy of rebuke or condemnation.[16] A censure by the Senate, whereby the full Senate adopts by majority vote a formal resolution of disapproval of a Member, may therefore encompass conduct that does not violate any express state or federal law, nor any specific Rule of the Senate. The Senate, in a similar manner as the House of Representatives in relation to its Members, has expressed reticence to exercise the power of expulsion (but not censure) for conduct in a prior Congress when a Senator has been elected or reelected to the Senate after the Member’s conviction, when the electorate knew of the misconduct and still sent the Member to the Senate.[17] The apparent reticence of the Senate or House to expel a Member for past misconduct after the Member has been duly elected or reelected by the qualified electors of a state, with knowledge of the Member’s conduct, appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people.[18] The authority to expel would thus be used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate as to the character or fitness for office of an individual whom the people have chosen to represent them in Congress.[19]

RECALL Concerning a sitting Member of the Senate (or House) who is either indicted for or convicted of a felony offense, it should be noted that the United States Constitution does not provide for nor authorize the recall of any United States officials, such as United States Senators, Representatives to Congress, or the President or Vice President, and thus no Senator or Representative has ever been recalled in the history of the United States.[20] Under the Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutional terms of office by their resignation, death, or by action of the House of Congress in which they sit by way of an expulsion[21] or by a finding that a subsequent public office accepted by a Member is “incompatible” with congressional office (and that the Member has thus vacated his seat in Congress).[22] The recall of Members of Congress was considered during the drafting of the federal Constitution, but no such provisions were included in the final version sent to the states for ratification, and the drafting and ratifying debates indicate a clear understanding and intent of the Framers and ratifiers of the Constitution that no right

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or power to recall a Senator or Representative from Congress existed under the Constitution.[23] As noted by an academic authority on this subject, The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators as provided in the Articles of Confederation].... In the end, the idea of placing a recall provision in the Constitution died for lack of support....[24]

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Although the Supreme Court has not needed to address the subject of recall of Members of Congress directly, other Supreme Court decisions, as well as other judicial and administrative rulings, decisions, and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office resides exclusively in each House of Congress as established in the expulsion clause of the United States Constitution[25] and (2) the length and number of the terms of office for federal officials, established and agreed upon by the states in the Constitution creating that federal government, may not be unilaterally changed by an individual state, such as through the enactment of a recall provision or other provision limiting, changing, or cutting short the term of a United States Senator or Representative.[26]

SALARY No law or Rule exists providing that a Member of the Senate who is indicted for or convicted of a crime must forfeit his or her congressional salary. However, a Member of Congress who is convicted of a crime and then incarcerated might be required to forego his or her congressional salary for some period of the incarceration if it results in the Member being absent from the Senate. The United States Code instructs the Secretary of the Senate to deduct from a Member’s salary the amount for each day that the Member is absent, except in cases of sickness of the Member or his or her family.[27]

ELECTION/REELECTION As discussed earlier concerning qualifications to hold the office of Member of Congress, indictment for or conviction of a felony offense is not a constitutional bar for eligibility to be elected or reelected as a Member of Congress, other than a conviction for treasonous conduct after having taken an oath of office, under the

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“disqualification” provision of the Fourteenth Amendment.[28] Additionally, a congressional censure or expulsion does not act as a permanent disability to hold congressional office in the future. A person under indictment or a convicted felon, even one who has also been disciplined by Congress, may run for and, in theory, be reelected to Congress and may not be “excluded” from Congress, but must be seated, if such person meets the three constitutional qualifications for office and has been duly elected.[29] Once a Member is seated, however, that Member may be subject to certain discipline by the Senate.[30] Thus, under the United States Constitution, there is no impediment for the people of a state (or district in the case of a Representative) to choose an individual who is under indictment, or who is a convicted felon, to represent them in Congress. Furthermore, because the qualifications for elective federal office are established and fixed within the United States Constitution, are the exclusive qualifications for congressional office, and may not be altered or added to by the state legislatures except by constitutional amendment, the states may not by statute, or otherwise, bar from the ballot a candidate for federal office because such person is indicted or has been convicted of a felony.[31] The required qualifications, as well as the disqualifications, to serve in Congress were intentionally kept at a minimum by the Framers of the Constitution to allow the people broad discretion to send whom they wish to represent them in Congress.[32] That is, the people voting in a district or state, rather than the institutions of Congress, the courts, or the executive, were meant to substantially control their own decisions concerning their representation in the federal legislature.

PENSIONS Officers and employees of the United States, including Members of Congress, do not, upon indictment for any crime, nor upon conviction of every crime that constitutes a felony, forfeit the federal pensions for which they qualify and the retirement income that they have accumulated. However, the federal pensions of Members of Congress will be affected in two general instances: upon the conviction of a crime concerning any of the national security offenses listed in the so-called “Hiss Act,” and upon the conviction of any one of several felony offenses relating to public corruption and abuse of one’s official position in the Congress. Under the so-called “Hiss Act,” Members of Congress, in a similar manner as most other officers and employees of the federal government, forfeit all of their federal retirement annuities for which they had qualified if convicted of a federal crime which relates to disclosure of classified information, espionage, sabotage,

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treason, misprision of treason, rebellion or insurrection, seditious conspiracy, harboring or concealing persons, gathering or transmitting defense information, perjury in relation to those offenses, and other designated offenses relating to secrets and national security offenses against the United States.[33] Additionally, under provisions of law more recently enacted in the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, (S. 1, 11 0th Congress), a Member of Congress will lose all “creditable service” as a Member for federal pension purposes if that Member is convicted for conduct (occurring after the enactment of this law and while that person was a Member) which constitutes a violation of any one of a number of federal laws concerning corruption in office. These laws include, for example, bribery and illegal gratuities; acting as an agent of a foreign principal; wire fraud, including “honest services” fraud; bribery of foreign officials; depositing proceeds from various criminal activities; obstruction of justice or intimidation or harassment of witnesses; an offense under “RICO,” — Racketeer Influenced and Corrupt Organizations Act; conspiracy to commit an offense or to defraud the United States to the extent that the conspiracy constitutes an act to commit one of the offenses listed above; conspiracy to violate the post-employment, “revolving door” laws; perjury in relation to the commission of any offense described above; or subornation of perjury in relation to the commission of any offense described above.[34] As to the loss of one’s federal pension annuity, or the loss of creditable service as a Member for the purposes of the Member’s retirement annuity, the nature of the offense is controlling; and it does not matter if the individual resigns from office prior to or after indictment or conviction, or if the individual is expelled from Congress.

REFERENCES [1]

[2]

For a survey of the status relative to Members of the House, see CRS Report RL33229, Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, by Jack Maskell. The Fourteenth Amendment to the Constitution, at Section 3, provides a disqualification for one who, having taken an oath of office to support the Constitution, “engages in insurrection or rebellion against,” or aids or abets the enemies of, the United States. This disqualification does not appear to be self-executing with respect to a Member, and would appear to require some act on the part of the Senate to find and declare a seat vacant on the grounds of such disqualification.

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[4]

[5]

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[6]

[7]

[8]

[9]

Jack Maskell Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001). See Powell, at 537 n.69, discussing Madison’s position at the Constitutional Convention that qualifications of the elected “were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.” 2 Farrand 249250. The question of “qualifications” does not, however, foreclose each House of Congress from judging a Member’s “fitness” for office under the authority of Article I, Section 5, clause 2, in a disciplinary proceeding (see discussion of “congressional discipline” in this report, below). Senate Republican Conference Rules, 109th Congress, Revised November 17, 2004, Rule 5, paragraph D: “Indictment or Conviction of Committee Chair/Ranking Member. In the event of an indictment for a felony, the chair/ranking member or elected member of the leadership shall step down until the case is resolved. Upon conviction, the chair/ranking member would automatically be replaced.” The Conference Rules are available at [http://src.senate.gov/ public/index.cfm?FuseAction=AboutSRC.ConferenceRules]. The Senate Democratic Conference Rules do not appear to be publically available. It may be noted that even in the even in the House, the applicable Rule is phrased in advisory, not mandatory, language because the institution of the House has raised issues concerning its authority to mandatorily suspend a Member from voting by a process less than an expulsion. See discussion of suspension concerning “congressional discipline” below and Deschler’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, at 187 (1976). See, e.g., S.Rept. 97-187, at 2. In the House, note also VIII Cannon’s Precedents of the House of Representatives, § 2205, concerning Representative Frederick Zihlman of Maryland, indicted December 10, 1929: “Prior to adjudication by the courts, the House took no note of criminal proceedings brought against a Member ....” S.Rept. 97-187, at 2: “In order not to interfere with the government’s prosecution of the criminal case, to avoid any possible prejudice to the Senator’s right to a fair trial and for other reasons, the Committee deferred further action in this matter pending the completion of the criminal trial.” Although early authorities indicated that the power to suspend a Member from proceedings was an inherent authority “analogous to the right of expulsion” (see Cushing, Law and Practice of Legislative Assemblies, Section 627, p. 251[9th ed. 1874]), substantive arguments and

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[10]

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[11]

[12]

[13]

47

questions have been raised concerning the power of the House or Senate in this regard. See, for example, discussion in II Hinds’ Precedents, § 1665 (1907) regarding action on Senators Tillman and McLaurin for fighting on the floor of the Senate. See also Deschler ’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, at 187 (1976), noting that the “House [has] indicated its more recent view that a Member could not be deprived involuntarily of his right to vote in the House.” Mandatory suspension, Members agreed, would “deprive the district, which the Member was elected to represent, of representation....” 121 Cong. Rec. 10341, April 16, 1975. S.Rept. 97-187, supra at 10-11. Although the Committee was of the opinion that its unanimous recommendation of expulsion “reflects its strong conviction that its own determination of this matter, and that of the Senate, must be made independently of the jury’s verdict” or the outcome of the appeal, because the ruling on the appeal was expected to be handed down shortly, the Committee recommended “that the Senate proceed expeditiously to final disposition of the foregoing resolution only when Judge Pratt has ruled on the aforesaid motions.” The jurisdiction delegated by the Senate to the Senate Select Committee on Ethics, as set out in the Committee Rules, includes investigating and adjudicating complaints, allegations or information that “any Senator ... has violated a law, the Senate Code of Conduct, or any rule or regulation of the Senate relating to the conduct of any individual in the performance of his or her duty as a Member, ... or has engaged in improper conduct which may reflect upon the Senate.” Rules of Procedure, Senate Select Committee on Ethics, S. Prt. 109-7, Rule 2 (2005). See S.Res. 338, 88th Cong., 2d Sess. Sec. 2 (1964), as amended. See Senate expulsions in United States Senate Election, Expulsion and Censure Cases, 1793-1990, S. Doc. 103-33, at pp. 95-108, Cases 36, 38, 39, 40 (1995). It should be noted, however, that the Senate Select Committee on Ethics recommended the expulsion of a Senator in 1995 who was not convicted of any crime, but who was found by the Committee to have abused the authority of his office in making unwanted sexual advances to women, enhancing his personal financial position, and for obstructing and impeding the Committee’s investigation. S.Rept. 104-137 (1995). The House of Representatives has expelled five Members — three for disloyalty to the Union, and two after conviction of various criminal corruption charges. Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861),

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[14]

[15]

[16]

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[17]

[18]

[19]

Jack Maskell Bright (1862), Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra. Senator William Blount of Tennessee, July 8, 1797, United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra at 1315, Case 5. For example, the Senate in 1981 considered the expulsion of a Senator recommended by the Senate Select Committee on Ethics (S.Rept. 97187, supra), after the Senator’s conviction of bribery, illegal gratuities, conflicts of interest and conspiracy in the so-called ABSCAM influence peddling probe. The Senator resigned prior to final Senate floor consideration. Note Riddick and Fruman, R iddick ’s Senate Procedure, S. Doc. No. 101-28, supra at 270. Additionally, a Senator resigned in 1995 after the Senate Select Committee on Ethics recommended expulsion in S.Rept. 104-137 (1995). In S.Rept. 2508, 83d Cong., 2d Sess. 22 (1954), the Senate Select Committee to Study Censure Charges explained: “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.” See discussion in S.Rept. 2508, 83rd Cong., supra at 20-23, 30-31, concerning McCarthy censure; and in House, H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969). Note Powell v. McCormick, 395 U.S. 486, 508, 509 (1969); Alexander Hamilton, 2 Eliot’s Debates 257; note II Hind’s Precedents § 1285, p. 850-852, discussion of jurisdiction of House after reelection of Member when the “charges against [the Member] were known to the people of his district before they reelected him.” “Congress has demonstrated a clear reluctance to expel when to do so would impinge ... on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel - An Exercise in SelfRestraint,” 29 Syracuse Law Review 1071, 1101 (1978). For a discussion of the policy considerations in such a matter, see Report of the House Judiciary Committee, H.Rept. 570, 63rd Cong., 2d Sess., VI Cannon’s Precedents, § 398, 557-558: “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

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[20]

[21] [22]

[23]

[24]

49

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 mindful 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. To exercise such power in that instance 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. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.” Note more detailed discussion of recall, generally, in CRS Report RL3001 6, Recall of Legislators and the Removal of Members of Congress from Office, by Jack Maskell. Article I, Section 5, cl. 2. See discussion in Deschler ’s Precedents, supra, at Volume 2, Chapter 7, § 13 (1977), and VI Cannon’s Precedents, supra at § 65 (1935); note, e.g., United States Constitution, Article I, Section 6. See also 1 Hinds’ Precedents, at pp. 600-601, Senate Judiciary Committee Report of August 2, 1861, recommending the finding of a vacancy, but not acted upon by the Senate. I Elliot, Debates on the Adoption of the Federal Constitution, 143-144, 172, and II Elliot, supra, at 289 (1888); 3 Farrand, Records of the Federal Convention of 1 787, 173 (Appendix A); note also ratifying debate on lack of authority for state recall in the Constitution, in Swan, “The Use of Recall in the United States,” The Initiative, Referendum and Recall, National Municipal League Series, (Munro, editor), at 298, n. 2 (1912). Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall, at 129 (Harvard University Press, 1989).

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[25] Burton v. United States, 202 U.S. 344, 369 (1906): “The seat into which he was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers”; note, also Biennial Report and Opinions of the Attorney General of the State of Oregon 313, (April 19, 1935): “[I]t has been uniformly held that jurisdiction to determine the right of a Representative in Congress to a seat is vested exclusively in the House of Representatives ... [and] a Representative in Congress is not subject to recall by the legal voters of the state or district from which he was elected. Should this [state] constitutional amendment be so construed as applying to the recall of a Representative in Congress it would to that extent be inoperative.” [26] See specifically, Walberg v. Lenawee County Board of Election Commissioners, File No. 07-2694-AW, Order Granting Plaintiff’s Motion for Summary Disposition, at 2 (Mich. Cir. Ct., Nov. 6, 2007). U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531 U.S. 510, 522-523 (2001); Story, Commentaries on the Constitution, Vol. I, § 627 (1883). The Supreme Court has expressly found that a state could not have “reserved” the power, under the 1 0th Amendment, to alter terms of a Member of Congress, because those terms of office (as well as those offices themselves) were established only in the United States Constitution, and the States thus could never previously have had that power over Members’ terms to “reserve”: “Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only ‘reserve’ that which existed before. As Justice Story recognized, ‘the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them.... No state can say, that it has reserved, what it never possessed.’” U.S. Term Limits, Inc., at 802; see also Cook v. Gralike, at 522. [27] 2 U.S.C. § 39. [28] Certain statutes, for example the federal bribery law (18 U.S.C. § 201), purport to have as an express punishment the disability to hold any office of profit or trust under the United States. Such a disqualification by statute, however, was found by the Supreme Court not to disqualify a person from being a Senator or Representative in Congress because the only qualifications and disqualifications for such elective offices are set out exclusively in the United States Constitution, and these constitutional

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[29] [30]

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[31]

[32]

[33] [34]

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provisions may not be added to or affected by statute. Burton v. United States, 202 U.S. 344 (1906). Powell v. McCormack, supra. Although the authority for each House of Congress to discipline by means such as expulsion or censure is not restricted on the face of the Constitution (except for the two- thirds requirement to expel), it has been a general practice and policy in Congress not to expel a Member for past offenses if the electorate knew of the offenses involved, and still chose to elect or reelect that individual as their Representative or Senator in Congress. See discussion in S.Rept. 2508, 83rd Cong., supra; VI Cannon’s §398, 557-558; Powell v. McCormack, supra at 508; Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel - An Exercise in Self Restraint,” 29 Syracuse Law Review 1071, 1089-1090 (1978). However, both the House and the Senate have otherwise disciplined a Member even after reelection, such as through censure, for past misconduct even if known to the electorate. States may not add qualifications for federal office additional to those established in the Constitution, such as requiring that a congressional candidate not be a felon or indicted for a felony. See, specifically, State ex rel. Eaton v. Schmal, 167 N.W. 481 (Sup. Ct. Minn. 1918); and U.S. Term Limits, Inc. v. Thornton, supra; Cook v. Gralike, supra; Powell v. McCormack, 395 U.S. 486, 522, 547-550 (1969). See discussion by Alexander Hamilton in The Federalist Papers, No. 60: “The qualifications of the persons who may ... be chosen, as has been remarked on other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.” Because the federal Constitution governs qualifications to hold federal office, but the states generally regulate qualifications to vote in those elections (Article I, Sec. 2), there may exist the interesting anomaly of a convicted felon who may run for federal office but could be barred by state law from voting in that election. Hamilton stated that “the true principle of a republic is, that the people should choose whom they please to govern them.” 2 Eliot’s Debates 257. See Powell v. McCormack, at 528, 527-536, discussing influence on Framers of England’s “Wilkes case” and the “long and bitter struggle for the right of the British electorate to be represented by men of their own choice.” See now 5 U.S.C. § 8311 et seq. Title IV of the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, 121. Stat. 735 (Sept. 14, 2007)[S. 1, 110th Congress].

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Chapter 3

RECALL OF LEGISLATORS AND THE REMOVAL OF MEMBERS OF CONGRESS FROM OFFICE *

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Under the United States Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutionally established terms of office by their resignation or death, or by action of the House of Congress in which they are a Member by way of an “expulsion,” or by a finding that in accepting a subsequent public office deemed to be “incompatible” with congressional office, the Member has vacated his congressional seat. Under Article I, Section 5, clause 2, of the Constitution, a Member of Congress may be removed from office before the normal expiration of his or her constitutional term by an “expulsion” from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the Members of the respective body present and voting. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States, or the conviction of a criminal statutory offense which involved abuse of one’s official position. Each House has broad authority as to the grounds, nature, timing, and procedure for an expulsion of a Member. However, policy considerations, as opposed to questions of authority, have appeared to restrain the Senate and *

This is an edited, excerpted and augmented edition of a Congressional Research Service Publication RL30016, dated January 7, 2008.

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Jack Maskell House in the exercise of expulsion when it might be considered as infringing on the electoral process, such as when the electorate knew of the past misconduct under consideration and still elected or re-elected the Member. As to removal by recall, the United States Constitution does not provide for nor authorize the recall of United States officers such as Senators, Representatives, or the President or Vice President, and thus no Member of Congress has ever been recalled in the history of the United States. The recall of Members was considered during the time of the drafting of the federal Constitution in 1787, but no such provisions were included in the final version sent to the states for ratification, and the specific drafting and ratifying debates indicate an express understanding of the Framers and ratifiers that no right or power to recall a Senator or Representative from the United States Congress exists under the Constitution. Although the Supreme Court has not needed to directly address the subject of recall of Members of Congress, other Supreme Court decisions, as well as the weight of other judicial and administrative decisions, rulings and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office is one which resides exclusively in each House of Congress as expressly delegated in the expulsion clause of the United States Constitution, and (2) the length and number of the terms of office for federal officials, established and agreed upon by the states in the Constitution creating that Federal Government, may not be unilaterally changed by an individual state, such as through the enactment of a recall provision or a term limitation for a United States Senator or Representative. Under Supreme Court constitutional interpretation, since individual states never had the original sovereign authority to unilaterally change the terms and conditions of service of federal officials agreed to and established in the Constitution, such a power could not be “reserved” under the 10th Amendment.

This report discusses briefly the manner in which a Member of Congress may be removed from office by “expulsion,” and then examines the issue of “recall” of legislators. The term of office established in the United States Constitution for a United States Senator is six years, and for a Representative in Congress, two years.[1] Under the Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutional terms of office by their resignation, death, or by action of the House of Congress in which they sit by way of an expulsion,[2] or by a finding that a subsequent public office accepted by a Member is “incompatible” with congressional office and that the Member has consequently vacated his seat in Congress.[3] As noted in the rules and manual of the House of Representatives with respect to the way in which vacancies

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may be brought about: “Vacancies are caused by death, resignation, declination, withdrawal, or action of the House in declaring a vacancy as existing or causing one by expulsion.”[4] Although considered in the Federal Convention of 1787, there was never a provision adopted in the United States Constitution for the “recall” of elected federal officials, such as Members of Congress, and thus no Member of the Senate or the House of Representatives has ever been recalled in the history of the United States. As noted by the United States Supreme Court, individual states never possessed the original sovereign authority, and thus could not have “reserved” such power under the 10th Amendment, to unilaterally change the terms, qualifications, and conditions of service of federal officials created in the United States Constitution.[5]

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EXPULSION Members of Congress may be involuntarily removed from office before the normal expiration of their constitutional terms by an “expulsion” from the Senate (if a Senator) or from the House of Representatives (if a Representative) upon a formal vote on a resolution agreed to by two-thirds of the membership of the respective body who are present and voting.[6] The United States Constitution expressly provides at Article I, Section 5, clause 2, that: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member.” An expulsion is a process, often considered inherent in parliamentary bodies, which is characterized as a self-disciplinary action necessary to protect the integrity of the institution and its proceedings.[7] An expulsion is different from an “exclusion.” An “exclusion” is not a disciplinary matter against a current Member, but rather a decision not to seat a Member-elect, by a simple majority vote of the House or Senate, upon a finding that the Member-elect is not entitled to a seat either because of a failure to meet the constitutional qualifications for office (age, citizenship and inhabitancy in the State), or that the Member-elect was not “duly elected.”[8] Members of Congress are not removed by way of an “impeachment” procedure in the legislature, as are executive and judicial officers, but are subject to the more simplified legislative process of expulsion.[9] A removal through an impeachment requires the action of both Houses of Congress — impeachment in the House and trial and conviction in the Senate; while an expulsion is accomplished merely by the

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House or Senate acting alone concerning one of its own Members, and without the constitutional requirement of trial and conviction. An expulsion from the Senate or the House of Representatives is considered the most severe form of congressional self-discipline. While there are no specific grounds for an expulsion expressed in the Constitution, expulsion actions in both the House and the Senate have generally concerned cases of perceived disloyalty to the United States Government, or the conviction of a criminal statutory offense which involved abuse of one’s official position.[10] In the United States Senate, 15 Senators have been expelled, 14 during the Civil War period for disloyalty to the Union (one expulsion was later revoked by the Senate),[11] and one Senator was expelled in 1797 for other disloyal conduct.[12] In the House of Representatives, five Members have been expelled, including three during the Civil War period for disloyalty to the Union.[13] Two other House Members have been expelled, one in 1980 after conviction of conspiracy and bribery in office, and the other Member in 2002 after conviction for conspiracy to commit bribery, receiving illegal gratuities, fraud against the Government in receiving “kickbacks” from staff, and obstruction of justice.[14] Although actual expulsions from Congress are fairly rare, it should be noted that several Members of Congress have chosen to resign from office rather than face what was apparently perceived as an inevitable congressional expulsion.[15] The authority within the Constitution of each House of Congress to expel one of its own Members is unrestricted on the face of the constitutional language, except as to the requirement for a two-thirds approval. Although such authority appears to be extensive as to the grounds, nature, timing, and the procedure for the expulsion of a Member,[16] policy considerations, as opposed to questions of power or authority, may have generally restrained the Senate and the House in the exercise of their authority to expel. Such restraint has been particularly evident when the conduct complained of occurred prior to the time the Member was in Congress,[17] or occurred in a prior Congress, when the electorate knew of the conduct and still elected or reelected the Member.[18] The apparent reticence of the Senate or House to expel a Member for past misconduct after the Member has been duly elected or reelected by the electorate, with knowledge of the Member’s conduct, appears to reflect in some part the deference traditionally paid in our heritage to the popular will and election choice of the people.[19] In 1914, the Judiciary Committee of the House detailed various policy considerations in expulsions for past misconduct: 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

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essential to enable the House to exclude from its deliberations and councils notoriously corrupt men, who have unexpectedly and suddenly dishonored themselves .... 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. To exercise such power in that instance 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. The effect of such a policy would tend not to preserve but to undermine and destroy representative government.[20]

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The authority to expel has thus been used cautiously, particularly when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for that of the electorate as to the character or fitness for office of someone the people have chosen to represent them in Congress.[21]

RECALL In some states, state legislators and other state or local elected officials may be removed from office before the expiration of their established terms not only by action of the legislature itself through an expulsion (or for executive officers, through an “impeachment” and conviction by the legislature), but also by the voters through a “recall” election procedure. While an expulsion is an internal authority of legislative bodies incident to their general powers over their own proceedings and members, recall is a special process outside of the legislature itself, exercised by the people through a special election. Recall provisions for state or local officers became popular in the “progressive movement,” particularly in the western and plains states, in the early part of the 20th Century.[22]

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Constitutional History The United States Constitution does not provide for nor authorize the recall of United States officials such as United States Senators, Representatives to Congress, or the President or Vice President of the United States, and thus no United States Senator or Member of the House of Representatives has ever been recalled in the history of the United States. As early as 1807, a Senate committee examining the question of the Senate’s duty and broad authority to expel a Member, noted that such duty devolves to the Senate not only because of the express constitutional grant of authority, but also as a practical matter because the Constitution does not allow for a “recall” of elected Members of Congress by the people or the state. The committee noted specifically that the Constitution had set out numerous provisions, qualifications and requirements for Members of Congress to prevent conflicts of interest and to assure a certain degree of fealty to constituents, but did not give a Member’s constituency the authority to recall such a Member:

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The spirit of the Constitution is, perhaps, in no respect more remarkable than in the solicitude which it has manifested to secure the purity of the Legislature by that of the elements of its composition .... Yet, in the midst of all this anxious providence of legislative virtue, it has not authorized the constituent body to recall in any case its representative.[23]

The recall of United States Senators or Representatives had been considered during the time of the drafting of the federal Constitution, but recall provisions were rejected and were not included in the final version of the Constitution sent to the states for ratification.[24] The ratifying process in the states evidences debate over this lack of inclusion of a recall provision. Luther Martin of Maryland, for example, in an address delivered to the Maryland Legislature, criticized the proposed Constitution because the Members of Congress “are to pay themselves, out of the treasury of the United States; and are not liable to be recalled during the period for which they are chosen.[25] In New York, an amendment was defeated in the 1788 ratifying convention which would have allowed the state legislatures to “recall their Senators ... and elect others in their stead.”[26] In the ratifying debates in Virginia, George Mason commented: “The Senators are chosen for six years. They are not recallable for those six years, and are re-eligible at the end of the six years. .... They cannot be recalled in all that time for any misconduct.”[27] This history indicates an understanding of the Framers and ratifiers of the Constitution that no right or power to recall a Senator or Representative from

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the United States Congress existed under the Constitution as ratified. As noted by an academic authority on the mechanisms of “direct democracy”:

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The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators by the state legislatures as provided in the Articles of Confederation]. ... In the end, the idea of placing a recall provision in the Constitution died for lack of support — at least from those participating in the ratifying conventions. The framers and the ratifiers were consciously seeking to remedy what they viewed as the defects of the Articles of Confederation and some of their state constitutions, and for many of them this meant retreating from an excess of democracy.[28]

Another constitutional scholar explained that the formation of the United States Government as a distinct, sovereign entity was unlike the former confederation, and the Continental Congress created by the Articles of Confederation where the colonial legislatures selected the congressmen for the state/colony and could “instruct and recall them,” such as a sovereign state could do with its ambassador to another country or to a multinational entity. Once the Union was formed in 1788 upon the ratification by the 9th state, it became clear that Members of Congress were no longer merely “ambassadors” from states coming together by treaty or confederation — and who thus could be recalled by their constituent entities — but rather were new officers of the newly formed national government, that is, officers of the United States.[29]

Judicial Decisions Supreme Court Jurisprudence Although the Supreme Court has not needed to directly address the subject of recall of Members of Congress, other judicial decisions indicate that the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office is one which resides within each House of Congress as expressly delegated in the expulsion clause of the United States Constitution, and not in the entire Congress as a whole (through the adoption of legislation), nor in the state legislatures through the enactment of recall provisions. In Burton v. United States,[30] the Supreme Court ruled that a provision of federal law which on its face purported to make one convicted of bribery “ineligible” to be a United States Senator, could not act as a forfeiture of a Senator’s office, since the only way to remove a

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Member under the Constitution was by the Senate exercising its authority over its own Members:

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The seat into which he was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers.[31]

The concept that the states do not, individually, possess the authority to change the terms or qualifications for federal officers agreed upon by the states in the United States Constitution, has been confirmed by the Supreme Court in modern case law.[32] The Supreme Court found in U.S. Term Limits, Inc. v. Thornton, that the authority of the individual states over the elections of federal officials under Article I, § 4, cl. 1, is not a broad authority for an individual state to substantively change the qualifications, length or number of terms of federal officials established within the United States Constitution.[33] The Court in U.S. Terms Limits, Inc. noted that the states do retain significant sovereign authority in many areas, but that the states transferred and delegated certain powers and authority to the national government within the instrument creating that entity, the Constitution. With respect to powers in relation to the federal, national government, and any powers deriving exclusively from and because of the existence of that national government, the states must look to the United States Constitution for grants or delegation of authority to them.[34]

Tenth Amendment As to the 10th Amendment and the “reserved” authority of the states, the United States Supreme Court has clearly explained that determining qualifications and terms for federal offices, created within the United States Constitution, were “not part of the original powers of sovereignty that the Tenth Amendment reserved to the States,” and thus whatever authority states have over the terms, qualifications and elections of federal officers must be a “delegated” authority from the Constitution.[35] Such authority could not be a “reserved” power of the states, since the states could not “reserve” a power it did not have as part of its original sovereign authority, that is, a power relative to something which did not exist before its creation in the Constitution: Petitioners’ Tenth Amendment argument misconceives the nature of the right at issue because that Amendment could only “reserve” that which existed before. As Justice Story recognized, “the states can exercise no

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powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them .... No state can say, that is has reserved, what it never possessed.” 1 Story § 627.[36]

Re-emphasizing this meaning of the Tenth Amendment’s “reserved” authority vis-a- vis federal officials, the Court later explained in Cook v. Gralick: The federal offices at stake “aris[e] from the Constitution itself.” ... Because any state authority to regulate election to those offices could not precede their very creation by the Constitution, such power “had to be delegated to, rather than reserved by, the States.”[37]

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Members of Congress are clearly federal officials, not state officers, and owe their existence and authority solely to the federal Constitution. As explained by the Supreme Court: In that National Government, representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is ‘an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, not controllable by, the states ....’ 1 Story § 627. Representatives and Senators are as much officers of the entire union as is the President.[38]

The United States Constitution establishes the exclusive qualifications for congressional office, sets the specific length of terms for Members of the House and for Senators, and expressly delegates to each House of Congress the authority to judge the elections and qualifications of, and to discipline and to remove its own Members.[39] These provisions of the United States Constitution, with respect to federal officials, have supremacy over state laws and provisions, and state laws in conflict with such constitutional provisions have been found by the courts in the past to be invalid.[40] Although the language of some state recall laws might be broad enough to include Members of Congress, or might even explicitly include federal officers, it does not appear under existing precedents and standards expressed by the Supreme Court that such statutes could be effective in altering the constitutionally established term of office of a Member of the United States Congress by allowing a Member to be removed from office through a state “recall” procedure.[41]

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Administrative and Judicial Decisions on State Recall Laws In Oregon in 1935, the state Attorney General ruled that the state’s recall provisions could not apply to a Member of Congress, who is not actually a state official, but who holds his office pursuant to the United States Constitution and is a federal constitutional officer. The opinion found that such recall provisions would interfere with the Congress’s exclusive constitutional authority over the elections and qualifications of its own members, noting that the “jurisdiction to determine the right of a representative in Congress to a seat is vested exclusively in the House of Representatives ... [and] a Representative in Congress is not subject to recall by the legal voters of the state or district from which he was elected.”[42] In interpreting a state recall statute, the Attorney General of Wisconsin did note in an opinion on May 3, 1979, that an administrative agency, the state election board, upon presentation of a valid petition to recall a Member of Congress under the Wisconsin Constitution, had no authority, in itself, to adjudicate and reject such petition without a ruling from a court.[43] When such matters have on rare occasions reached the courts, however, the courts have thus far found that state recall laws are ineffective to override and substitute for the provisions of the United States Constitution concerning the terms of and removal of federal officials such as Members of Congress. A federal court in 1967, for example, dismissed a suit which attempted to compel the Idaho Secretary of State to accept petitions recalling Senator Frank Church of Idaho. In the unreported judicial ruling, the court found that Senators are not subject to state recall statutes, and that such a state provision is inconsistent with the provisions of the United States Constitution.[44] Similarly, a state court in Michigan dismissed a petition effort to recall a Member of Congress under that state’s recall statute. Although an administrative entity had earlier approved the language of the recall petition, and despite the express language of the state law, the court granted an injunction against the continuation of the recall effort, finding “that pursuant to the text of Article I of the United States Constitution and by operation of the Supremacy Clause of the United States Constitution, the recall provisions under Michigan law are ineffective to recall a Member of Congress.”[45]

Constitutional Amendment; Pro and Con For a recall provision to be enforceable against a Member of Congress, it would appear that a constitutional amendment would need to be adopted by the requisite number of states authorizing such a recall procedure in the United States Constitution. Although there has been some call for a constitutional amendment

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authorizing national “referenda” or “initiatives,” there has not been significant movement for a national recall provision. Supporters of recall provisions see this mechanism as a device to assure regular and close oversight of elected public officials, and to make elected officials more continuously, rather than periodically, responsible and responsive to the will and desires of the electorate. With recall procedures available, it is argued, there is no need for the electorate to tolerate an incompetent, corrupt, and/or unresponsive official until that official’s term is over. Those who oppose recall note that recall petitions generally need only a relatively small minority of the electorate to force a recall election of an official. With the threat of a recall election ever present, it is argued that an official may be deterred from, and penalized for, taking strong and clear political positions that could offend even a small, but vociferous and active political group. It is contended that such small special interest or “single-issue” groups might effectively stymie an official by constantly occupying the official with the potential need to campaign and run in a recall election. It is also argued that complex governmental programs and policies may often need to function and to be evaluated in the long run, over time; but with the threat of immediate recall, Members may be further deterred in supporting long-term plans and programs for the country which may not bring immediate, shortterm benefits to constituents.

REFERENCES [1] [2] [3]

[4] [5]

[6]

U.S. CONST., art. I, § 3, and amend. XVII, cl. 1 (Senators); art. I, § 2 (Representatives). U.S . CONST., art. I, § 5, cl. 2. See discussion in Deschler ’s Precedents of the U. S. House of Representatives, Vol. 2, ch. 7, § 13 (1977), and VI Cannon’s Precedents of the House of Representatives, § 65 (1935); note, e.g., U.S. CONST., art. I, § 6. Constitution, Jefferson’s Manual, and Rules of the House of Representatives, 1 09th Congress, H.Doc. 108-241, at § 17 (2005). U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531 U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I, § 627 (1883). Brown and Johnson, House Practice, 108th Cong., 1st Sess., ch. 58, “Voting,” at § 28, pp. 935-936 (2003).

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[7]

Cushing, Elements of the Law and Practice of Legislative Assemblies in the United States, Sections 683-684, at 268-269 (Boston 1856); note also Hiss v. Bartlett, 68 Mass. 468 (1855). [8] Powell v. McCormack, 395 U.S. 486 (1969). There is also a “disqualification” provision in the 14th Amendment, § 3, where one may be “disqualified” from holding congressional office for engaging in insurrection or rebellion against the United States or giving aid or comfort to our enemies after having taken an oath to support the Constitution. This provision might be used to “exclude,” that is, not to seat a person elected to Congress for failing to meet the qualifications (see discussion concerning House “exclusions” and disqualifications, presumptively on 14th Amendment grounds, of socialist and pacifist Victor Berger of Wisconsin in 1919, and again in 1920, VI Cannon’s Precedents, §§56-59; also Powell v. McCormack, 395 U.S. at 545, n.83 (1969)). Removal of a Member on such grounds would still appear to require the specific action of the relevant House of Congress. [9] See case of Senator William Blount (Tenn.), expelled July 8, 1797, found not subject to impeachment. III Hinds’ Precedents of the House of Representatives, § § 2294-2318 (1907). [10] In addition to actual expulsions, note House Committee on Standards of OfficialConduct’s recommendations for expulsion of a Member for bribery in “Abscam” matter (H.Rept. 97-110, 97th Cong., 1st Sess. (1981)), and of another Member after conviction for receipt of illegal gratuities, Travel Act violations and obstruction of justice (H.Rept. 100- 506, 100th Cong., 2d Sess. (1988)). See also Senate Select Committee on Ethics recommendation in S.Rept. 97-187, 97th Cong., 1st Sess. (1981), after Senator’s conviction in “Abscam” matter. It should be noted, however, that the Senate Select Committee on Ethics recommended the expulsion of a Senator in 1995 who was not convicted of any crime, but who was found by the Committee to have abused the authority of his office in making unwanted sexual advances to women, enhancing his personal financial position, and for obstructing and impeding the Committee’s investigation. S.Rept. 104-137, 104th Cong., 1st Sess. (1995). [11] Note expulsions of Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862), Johnson (1862), and Polk (1862). The expulsion order regarding Senator Sebastian was later revoked. United States Senate Election, Expulsion and Censure Cases, 1793-1990, S. Doc. 103-33, 103d Cong., 1st Sess., at pp. 95-108, Cases 36, 38, 39, 40 (1995).

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[12] Senator William Blount of Tennessee, July 8, 1797, United States Senate Election, Expulsion and Censure Cases, 1793-1990, supra at 1315, Case 5. [13] Representative-elect John B. Clark of Missouri (1861), Representative John W. Reid of Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861). II Hinds’ Precedents, supra at § § 1261,1262; House of Representatives Exclusion, Censure and Expulsion Cases, Comm. Prt., 93rd Cong. 1st Sess. at 143-144 (1973). [14] H.Rept. 96-1387, 96th Cong., 2d Sess., In the Matter of Representative Michael J. Myers (1980), 126 Congressional Record 28,978 (October 2, 1980); H.Rept. 107-594, 107th Cong., 2d Sess., In the Matter of Representative James A. Traficant, Jr. (2002), and H.Res. 495, 107th Cong., 148 Congressional Record 14318-14319 (July 24, 2002). [15] In Senate see, e.g., S.Rept. 97-187, supra, (Senator resigned in 1982 prior to final Senate floor consideration, Riddick and Fruman, Riddick’s Senate Procedure, S. Doc. 10 1-28, at 270 (1992)); and 1995 resignation of Senator after Committee recommendation of expulsion in S.Rept. 104-137, supra. In the House, note resignations of two Representatives, one in 1981 and one in 1988 after Committee recommendations of expulsion in H.Rept. 97-110, supra, and H.Rept. 100-506, supra; case of Rep. B.F. Whittemore, recommended for expulsion by Military Affairs Committee for sale of Military Academy appointments, who subsequently resigned in 1870, and who was then censured in abstentia by the House (II Hinds’ Precedents, supra at § 1273); and House censure of John DeWeese after his resignation (also for the sale of Academy appointments), but before the committee reported the resolution of expulsion. II Hinds’ Precedents, supra at § 1239. See also expulsion resolutions, reported from an ad hoc committee, for bribery, and subsequent resignations during House consideration of resolutions, by Representatives William Gilbert, Frances Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, supra at § 1275). [16] In re Chapman, 166 U.S. 661, 669-670 (1897); United States v. Brewster, 408 U.S. 501, 519 (1972); Story, Commentaries on the Constitution, Vol. II, § 836 (1883). [17] H.Rept. 94-1477, 94th Cong., 2d Sess. 2 (1976), where House Committee on Standards of Official Conduct recommended against expulsion since Member’s conviction “while reflecting on his moral turpitude, does not relate to his official conduct while a Member of Congress.”

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[18] Note discussion in S.Rept. 2508, 83rd Cong., 2d Sess. 20-23, 30-31 (1954), concerning McCarthy censure; and H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969). [19] Powell v. McCormack, supra at 508, 509; Alexander Hamilton, II Eliot’s Debates 257; note II Hinds’ Precedents § 1285, p. 850-852, discussion of jurisdiction of House after reelection of Member when the “charges against [the Member] were known to the people of his district before they reelected him.” [20] Report of the House Judiciary Committee, H.Rept. 570, 63rd Cong., 2d Sess. (1914), VI Cannon’s Precedents of the House of Representatives, § 398, 557-558. [21] “Congress has demonstrated a clear reluctance to expel when to do so would impinge ... on the electoral process.” Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel — An Exercise in SelfRestraint,” 29 Syracuse Law Review 1071, 1101 (1978). [22] G. Theodore Mitau, State and Local Government, Politics and Processes, 90 -93 (Charles Scribner’s Sons 1966); Comment, “The Use and Abuse of Recall: A Proposal for Legislative Recall Reform,” 67 Nebraska Law Review 617, 62 1-625 (1988). [23] II Hinds’ Precedents, supra at § 1264, p. 818, Senator John Quincy Adams reporting for the ad hoc committee appointed to examine the question of expulsion of Senator John Smith of Ohio, December 31, 1807; see also Remick, The Power of Congress in Respect to Membership and Elections, Vol. I, pp. 53 1-532 (1929). [24] The Articles of Confederation of 1777 had contained a provision for recall of United States Senators by the state legislatures. Section V stated that the state legislatures would have “a power reserved in each state to recall its delegates, or any of them, at any time within the year and to send others in their stead ....” At the Constitutional Convention at Philadelphia, “Randolph’s Propositions” of May 29, 1787 proposed for recall of popularly elected representatives, but this was not accepted by the Convention. I Elliot, Debates on the Adoption of the Federal Constitution, 143-144, 172 (1888). [25] 3 Farrand, Records of the Federal Convention of 1 787, 173 (Appendix A). [26] II Elliot, Debates on the Adoption of the Federal Constitution, 289 (1888); note also discussion of state ratifying debate on lack of authority for state recall in the federal Constitution, in Herbert S. Swan, “The Use of Recall in the United States,” from The Initiative, Referendum and Recall, National

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[27]

[28] [29] [30] [31] [32]

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[33] [34]

[35] [36]

[37] [38] [39]

[40]

67

Municipal League Series, (William Bennett Munro, editor), at p. 298, n.2 (1912). The Papers of George Mason, 1725-1792 (16 June 1788, Papers 3:1078), Rutland, editor (1970), as cited in Kirkland and Lerner, The Founders’ Constitution, Vol. II, at 293 (1988). Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall, at 129 (Harvard University Press 1989). Akil Amar, The Constitution, A Biography, at p. 41 (Random House 2005). 202 U.S. 344 (1906). Burton, 202 U.S. at 369. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001). U.S. Term Limits, Inc., 514 U.S. at 832-835. U.S. Term Limits, Inc., 514 U.S. at 800-802. The Court stated: “As we have frequently noted, ‘[t]he States unquestionably do retain a significant measure of sovereign authority. They do so, however, only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.’ Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985); ... see also New York v. United States, 505 U.S. 144, 155-156 (1992).” 514 U.S. at 801802. (Emphasis in original) U.S. Term Limits, Inc., 514 U.S. at 802. U.S. Term Limits, Inc., 514 U.S. at 802. “[A]s the Framers recognized, electing representatives to the National Legislature was a new right, arising from the Constitution itself.” 514 U.S. at 805; Cook v. Gralike, supra at 522. Cook v. Gralike, 531 U.S. at 522. U.S. Term Limits, Inc., 514 U.S. at 803. U.S. CONST., art. I, § 2, cl. 2, and art. I, § 3, cl. 3. Members of the House are to be “chosen every second Year by the People of the several States ....” (art. I, § 2, cl. 1), and Senators are chosen for terms of “six Years” each. aArt. I, § 3, cl. 1, and amendment XVII: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years ....”). As to judging elections and qualifications, and the authority to remove Members before their terms expire, see art. I, § 5, cl. 1 and 2. U.S. CONST., art. VI, cl. 2. See, for example, with respect to qualifications for candidates to federal office: Danielson v. Fitzsimmons, 44 N.W. 484 (Minn. 1950); Application of Ferguson, 294 N.Y.S.2d 174,

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176 (Super. Ct. 1968) (state laws prohibiting felons from running for congressional office found invalid); Ekwall v. Stadelman, 30 P. 2d 1037 (Ore. 1934); Shub v. Simpson, 196 Md. 177, 76 A.2d 332, appeal dismissed, 340 U.S. 881 (1958); Hellmann v. Collier, 141 A.2d 908, 911 (Md. 1958); Exon v. Tiemann, 279 F. Supp. 609, 613 (Neb. 1968); State ex rel. Chavez v. Evans, 446 P.2d 445, 448 (N.M. 1968)(state statutes requiring congressional candidates to reside in congressional district found invalid); Dillon v. Fiorina, 340 F. Supp. 729, 731 (N.M. 1972); Campbell v. Davidson, 233 F.3d 1229 (10th Cir. 2000), cert. denied, 532 U.S. 973 (2000); Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000), cert. denied, Jones v. Schaefer, 532 U.S. 904 (2000)(state laws establishing durational residency requirements for congressional candidates found invalid). [41] “Should this [state] constitutional amendment be so construed as applying to the recall of a Representative in Congress it would to that extent be inoperative.” Biennial Report and Opinions of the Attorney General of the State of Oregon 313, (April 19, 1935). If a recall election for a Member of Congress were actually held under a state provision, it is most likely that the ultimate effect would be “advisory” only, having perhaps significant political, but not legal, import. It may be noted that in Arizona, the state law allows a candidate for United States Senator or Representative in Congress to sign a “pledge” to resign from office if he or she loses a recall election under state recall procedures. Arizona Rev. Stats. §§ 19- 221, 222. If the candidate signs the pledge or files an alternative statement that he or she will not be bound by a recall, such statement is given by the secretary of state “to the public press when made.” Notwithstanding such pledge, a legal action to enforce a promise to voluntarily resign elective federal office may prove problematic, although a refusal to honor such promise could obviously have significant political impact for an elected official. [42] Biennial Report and Opinions of the Attorney General of the State of Oregon 313 (1935). See also opinion and brief of Senator Walter George, then Chairman of the Senate Committee on Privileges and Elections, reaching the same conclusion as to the lack of constitutional authority of a State to terminate or cut short by recall the constitutionally established term of a United States Senator or Representative, 79 Congressional Record 10688-89 (July 3, 1935). [43] 68 Opinions of the Attorney General 140, 146, 148 (Wisconsin 1979): “In the foregoing discussion I have attempted neither a resolution nor a comprehensive analysis of the constitutional issue. Enough has been

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said, however, to show that the question of constitutionality is one that is arguable and open to debate. The Wisconsin Supreme Court has provided guidance to administrative bodies called upon to perform their ministerial duties under circumstances raising doubts as to the constitutional validity of the result. ... Accordingly, in the event petitions for the recall of a United States senator are presented to the Elections Board, you should proceed to carry put your responsibilities ... unless and until directed otherwise by a court of law.” [44] See New York Times, “U.S. Judge Rejects Plea Asking Recall of Senator Church,” p. 47, col. 1 (October 1, 1967); Washington Post, “Recall Barred,” p. A5 (Sept. 30, 1967). [45] Walberg v. Lenawee County Board of Election Commissioners, File No. 07-2694-AW, Order Granting Plaintiff’s Motion for Summary Disposition, at 2 (Mich. Cir. Ct., Nov. 6, 2007).

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Chapter 4

STATUS OF A MEMBER OF THE HOUSE WHO HAS BEEN INDICTED FOR OR CONVICTED OF A FELONY *

ABSTRACT

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There are no federal statutes or Rules of the House of Representatives that directly affect the status of a Member of Congress who has been indicted for a crime that constitutes a felony. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the House merely upon an indictment for an offense, prior to an establishment of guilt under the judicial system. Thus, under House Rules, an indicted Member may continue to participate in congressional proceedings and considerations; under the Constitution, a person under indictment is not disqualified from being a Member of or a candidate for re-election to Congress. Internal party rules in the House, however, require an indicted chairman or ranking Member of a House committee, or a member of the House party leadership, to temporarily step aside from his or her leadership or chairmanship position. Additionally, a recent change in the Rules of the House requires the House Committee on Standards of Official Conduct, generally known as the House “Ethics Committee,” to either initiate an inquiry by an investigative subcommittee of that Committee within 30 days of the time any Member of the House has been indicted or otherwise charged with criminal conduct in any state or federal court, or to report to the House the Committee’s reasons for not moving forward. Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. No express constitutional *

This is an edited, excerpted and augmented edition of a Congressional Research Service Publication RL33229, dated October 5, 2007.

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disability or “disqualification” from Congress exists for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct by someone who has taken an oath of office to support the Constitution. Members of the House are, however, instructed by House Rules not to vote in committee or on the House floor once they have been convicted of a crime for which the punishment may be two or more years imprisonment. Furthermore, under party rules, Members may lose their chairmanships of committees or ranking member status upon conviction of a felony. Conviction of certain crimes may subject — and has subjected in the past — Members of the House to internal legislative disciplinary proceedings, including resolutions of reprimand and censure, as well as expulsion from the House upon approval of two-thirds of the Members. Conviction of certain crimes relating to national security offenses would result in the Member’s forfeiture of his or her entire federal pension annuity under the provisions of the so-called “Hiss Act” and, under more recent provisions of law, conviction of particular crimes by Members relating to public corruption will result in the loss of the Member’s entire “creditable service” as a Member for purposes of calculating their federal retirement annuities. This report summarizes the potential consequences, with respect to congressional status, that may result when a sitting Member of the House of Representatives is indicted for or is convicted of a felony.

BACKGROUND If a sitting Member of Congress is indicted for a criminal offense that constitutes a felony, the status and service of that Member is not directly affected by any federal statute or Rule of the House of Representatives. No rights or privileges are forfeited under the Constitution, statutory law, or the Rules of the House merely upon an indictment for an offense, prior to an establishment of guilt under our judicial system. Internal party rules in the House, however, now require an indicted chairman or ranking Member of a House committee, or a member of the House party leadership, to temporarily step aside from his or her leadership or chairmanship position, although the Member’s service in Congress would otherwise continue. Once a Member of the House is convicted of a crime that is a felony, certain potential consequences exist relevant to his or her status as a Member of the House. It should be noted that Members of Congress do not automatically forfeit their offices upon conviction of a crime that constitutes a felony. There is no express constitutional disability or “disqualification” from Congress for the conviction of a crime, other than under the Fourteenth Amendment for certain treasonous conduct. Members of the House are, however, instructed by House Rule not to vote in

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committee or on the House floor once they have been convicted of a crime for which the punishment may be two or more years imprisonment. Furthermore, under party rules, Members may lose their chairmanships of committees or ranking member status upon conviction of a felony. Conviction of certain crimes may subject — and has subjected in the past — Members of the House to internal legislative disciplinary proceedings, including resolutions of reprimand and censure, as well as expulsion from the House upon approval of two-thirds of the Members. Expulsion of a Member from Congress does not result in the forfeiture or loss of the (former) Member’s federal pension, but the Member’s conviction of certain crimes may lead to such forfeiture of retirement annuities, or the loss of all of the “creditable service” as a Member that one would have earned towards a federal pension.

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SERVICE IN CONGRESS: QUALIFICATIONS FOR HOLDING OFFICE Indictment and/or conviction of a crime that is a felony does not constitutionally disqualify one from being a Member of Congress (nor from being a candidate for a future Congress), unless a Member’s conviction is for certain treasonous conduct committed after taking an oath of office to support the Constitution.[1] There are only three qualifications for congressional office, which are set out in the United States Constitution at Article I, Section 2, clause 2, for Representatives (and Article I, Section 3, clause 3 for Senators): age, citizenship, and inhabitancy in the state when elected. These constitutional qualifications are the exclusive qualifications for being a Member of Congress, and they may not be altered or added to by Congress or by any state unilaterally.[2] Once a person meets those constitutional qualifications, that person, if elected, is constitutionally “qualified” to serve in Congress, even if under indictment or a convicted felon.[3]

COMMITTEE CHAIRMANSHIPS AND LEADERSHIP POSITIONS Indictment Although no specific or formal Rule of the House of Representatives exists concerning the status of a Member who has been indicted, the political parties in the House have both adopted internal conference and caucus rules that

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provide for the temporary loss of one’s position as the chairman or ranking member of a committee, and the temporary loss of one’s leadership position if the Member has been indicted for a felony having a possible sentence of two or more years imprisonment. The Republican Conference Rules regarding an indicted member of the Republican leadership in the House were adopted on January 3, 2005, and provide, at Rule 26, that “a Member of the leadership shall step aside if indicted for a felony for which a sentence of two or more years imprisonment may be imposed.”[4] The Republican Conference Rules have also provided since 1993 that the “Chairman of a standing, select, joint or ad hoc committee of the Congress, or any subcommittee thereof, who is indicted for a felony for which a sentence of two or more years imprisonment may be imposed, shall step aside....”[5] The Rules of the Democratic Caucus have had a similar provision since May of 1980 with regard to committee positions whereby a Democratic Member who is indicted for a felony for which a sentence of two or more years imprisonment may be imposed would “cease to exercise the powers of chairman or ranking minority member and shall step aside....”[6] In 2005, the Democratic Caucus adopted a provision requiring a member of the Democratic leadership of the House to step aside temporarily when they have been indicted for a felony for which a sentence of two or more years imprisonment may be imposed.[7]

Conviction The rules of both the Democratic and Republican parties in the House of Representatives have generally provided that a Member who has been convicted of a felony for which a sentence of two years or more may be imposed (or who has been censured by the House) loses his or her committee chairmanship.[8]

REFRAINING FROM VOTING IN CONGRESS AFTER CONVICTION Although the office of a Member of Congress is not automatically forfeited upon conviction of a felony, a sitting Member of the House of Representatives convicted of an offense that may result in two or more years imprisonment should, under House Rules XXIII (10), “refrain from participation in the business of each committee of which he is a member, and a Member should refrain from voting” on

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any question on the floor of the House until his or her presumption of innocence is restored, or until the individual is reelected to Congress. The rule is phrased in advisory, not mandatory, language because the House has raised issues concerning its authority to mandatorily suspend a Member from voting by a process less than an expulsion.[9] Members of the House, however, are explicitly instructed to follow both “the spirit and the letter” of the House Rules,[10] and Members are expected to abide by the abstention rule. This instruction was emphasized in a 2002 letter from the House Committee on Standards of Official Conduct to a Member of the House who had been convicted of multiple felony offenses and was awaiting sentencing. The Committee stressed to that Member “in the strongest possible terms that if you violate the clear principles of this provision — that is, for example, by voting in the House — you risk subjecting yourself to action by this Committee, and by the House, in addition to any other disciplinary action that may be initiated in connection with your criminal conviction.”[11] No comparable provision in House Rules exists regarding a Member who is merely under indictment for an offense.

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Congressional Discipline Indictment Each House of Congress has the express authority, under Article I, Section 5, clause 2, of the United States Constitution, to punish a Member for “disorderly Behaviour” and, with the concurrence of two-thirds, to expel a Member. Although the breadth of authority and discretion within each House as to the timing, nature, and underlying conduct involved in an internal discipline of a Member is extensive, the traditional practice in Congress, in cases where a Member of Congress has been indicted, has been to wait to impose congressional discipline, such as expulsion or censure, against the Member until the question of guilt has been at least initially resolved through the judicial system.[12] Members of Congress, it should be noted, like many other individuals, have been indicted and charged with various offenses and then been subsequently exonerated in judicial proceedings. The House has thus been reluctant to remove from Congress individuals who have been lawfully elected as representatives by their constituents, based merely upon charges in an indictment. However, no impediment in law or rule exists for ongoing congressional inquiries concurrent with criminal proceedings (although such actions may complicate some evidentiary issues in subsequent judicial proceedings, and certain internal, concurrent congressional inquiries have in the past been postponed or partially deferred “at the

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request” of the Department of Justice[13]). In a recent change to the House Rules, the House Committee on Standards of Official Conduct is required generally to initiate an inquiry by an investigative subcommittee of that committee whenever a Member of the House has been indicted or otherwise charged with criminal conduct in any state or federal court.[14] The committee is instructed to either empanel the investigative subcommittee within 30 days of the indictment (or other filing of charges), or to report to the House the reasons for not empaneling such an investigative subcommittee, such as, as noted by the sponsor of the provision, if the committee members “do not feel that going forward is appropriate.”[15] An attempt to mandatorily suspend an indicted Member from voting or participating in congressional proceedings, however, raises several issues. In general, elected Representatives and Senators are not in the same situation as persons appointed to positions in the government with indefinite tenure, nor as private professionals, who might be suspended for a period of time merely upon suspicion or charges being levied, because Members of Congress are directly elected by, answerable to, and personally represent the people of their district or state in the Congress. The authority of either House to mandatorily suspend a Member from participation in congressional business has thus been questioned on grounds of both policy and power because such action would, in effect, disenfranchise that Member’s entire constituency, deprive the people of their full constitutional representation in Congress, and would not allow the constituents to replace a Member, such as they could in an expulsion action.[16] In the past, some Members have voluntarily refrained from participating in congressional matters while under indictment,[17] but this does not appear to be a common practice in more recent times in the past century.

Conviction Conviction of a crime may subject — and has subjected in the past — a Member of the House to internal disciplinary action, including a resolution for reprimand or censure of the Member, up to and including an expulsion from Congress upon a two-thirds vote of the Members of the House present and voting. The more recent practice in the House of Representatives has been, in cases of conviction of a Member of crimes that relate to official misconduct, not to wait until all appeals are exhausted, but to recognize the underlying factual findings of a judicial proceeding where guilt of a Member was established, regardless of the potential legal or procedural issues that may be raised and resolved on appeal.[18] The Rules of the House Committee on Standards of Official

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Conduct, the House’s standing ethics committee, specifically provide, in fact, for automatic jurisdiction of the Committee to open a conduct investigation when a Member has been convicted in a federal, state, or local court of a felony.[19] No specific guidelines exist regarding actionable grounds for congressional discipline under the constitutional authority of each House to punish its own Members. Each House of Congress has significant discretion to discipline misconduct that the membership finds to be worthy of censure, reprimand, or expulsion from Congress. When the most severe sanction of expulsion has been employed in the House, however, the conduct has historically involved either disloyalty to the United States or the violation of a criminal law involving the abuse of one’s official position, such as bribery. The House of Representatives has actually expelled only five Members (four Members and one Member-elect) in its history, three of whom were expelled during the Civil War period in 1861 for disloyalty to the Union.[20] The fourth Member of the House to be expelled was Representative Michael J. (Ozzie) Myers, of Pennsylvania, on October 2, 1980, after his bribery conviction for receiving a payment in return for promising to use official influence on immigration bills in the so-called ABSCAM “sting operation” run by the FBI.[21] The fifth Member of the House to be expelled was Representative James A. Traficant, Jr., of Ohio, expelled on July 24, 2002, after a 10-count federal conviction for activities concerning the receipt of favors, gifts, and money in return for performing official acts on behalf of the donors and the receipt of salary kickbacks from staff.[22] Although the numbers of actual expulsions from the House are low, some Members of the House who have been found to have engaged in serious misconduct were not actually expelled because they chose to resign their seats in Congress (or lost an imminent election) before any formal action was taken against them by the House. In addition to the actual expulsions in 1980 and 2002, for example, the committees reviewing Member conduct have recommended to the House the expulsion of other Members involved in offenses such as bribery, illegal gratuities, and obstruction of justice who then resigned before the matter was considered by the full House,[23] whereas other Members convicted of crimes resigned their seats even before the completion of committee reviews. In addition to expulsion, the House as an institution may take other disciplinary actions against one of its Members, including censure, reprimand, and a fine. The House of Representatives has taken a broad view of its authority to censure or reprimand its Members for any conduct that the House finds to be reprehensible and/or to reflect discredit on the institution and which is, therefore, worthy of rebuke or condemnation.[24] A censure or a reprimand, where the full House adopts by

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majority vote a formal resolution of disapproval of a Member, may encompass conduct that does not violate any express law or Rule of the House.[25]

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RECALL Concerning a sitting Member of the House (or Senate) who is either indicted for or convicted of a felony offense, it should be noted that the United States Constitution does not provide for nor authorize the recall of any United States officials, such as United States Senators, Representatives to Congress, or the President or Vice President, and thus no Senator or Representative has ever been recalled in the history of the United States.[26] Under the Constitution and congressional practice, Members of Congress may have their services ended prior to the normal expiration of their constitutional terms of office by their resignation, death, or by action of the House of Congress in which they sit by way of an expulsion[27] or by a finding that a subsequent public office accepted by a Member is “incompatible” with congressional office (and that the Member has thus vacated his seat in Congress).[28] The recall of Members of Congress was considered during the drafting of the federal Constitution, but no such provisions were included in the final version sent to the States for ratification, and the drafting and ratifying debates indicate a clear understanding and intent of the Framers and ratifiers of the Constitution that no right or power to recall a Senator or Representative from Congress existed under the Constitution.[29] As noted by an academic authority on this subject: The Constitutional Convention of 1787 considered but eventually rejected resolutions calling for this same type of recall [recall of Senators as provided in the Articles of Confederation]. ... In the end, the idea of placing a recall provision in the Constitution died for lack of support ....[30]

Although the Supreme Court has not needed to address the subject of recall of Members of Congress directly, other Supreme Court decisions, as well as other judicial and administrative rulings, decisions, and opinions, indicate that (1) the right to remove a Member of Congress before the expiration of his or her constitutionally established term of office resides exclusively in each House of Congress as established in the expulsion clause of the United States Constitution[31] and (2) the length and number of the terms of office for federal officials, established and agreed upon by the States in the Constitution creating that federal government, may not be unilaterally changed by an individual state,

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such as through the enactment of a recall provision or other provision limiting, changing, or cutting short the term of a United States Senator or Representative.[32]

SALARY No law or Rule exists providing that a Member of the House who is indicted for or convicted of a crime must forfeit his or her congressional salary. However, a Member of Congress who is convicted of a crime and then incarcerated, might be required to forego his or her congressional salary for some period of the incarceration if it results in the Member being absent from the House. The United States Code instructs the Chief Administrative Officer of the House to deduct from a Member’s salary the amount for each day that the Member is absent, except in cases of sickness of the Member or his or her family.[33]

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ELECTION/RE-ELECTION As discussed earlier concerning qualifications to hold the office of Member of Congress, indictment for or conviction of a felony offense is not a constitutional bar for eligibility to be elected or reelected as a Member of Congress, other than a conviction for treasonous conduct after having taken an oath of office, under the “disqualification” provision of the Fourteenth Amendment.[34] Additionally, a congressional censure or expulsion does not act as a permanent disability to hold congressional office in the future. A person under indictment or a convicted felon, even one who has also been disciplined by Congress, may run for and, in theory, be reelected to Congress and may not be “excluded” from Congress, but must be seated, if such person meets the three constitutional qualifications for office and has been duly elected.[35] Once a Member is seated, however, that Member may be subject to certain discipline by the House.[36] If reelected to the House, a Member who has been convicted for an offense that barred the Member from voting under House Rules would have his or her full voting privileges restored upon re-election.[37] Thus, under the United States Constitution there is no impediment for the people of a district or state to choose an individual who is under indictment, or who is a convicted felon, to represent them in Congress. Furthermore, because the qualifications for elective federal office are established and fixed within the United States Constitution, are the exclusive qualifications for congressional office, and may not be altered or added to by the state legislatures except by

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constitutional amendment, the states may not by statute, or otherwise, bar from the ballot a candidate for federal office because such person is indicted or has been convicted of a felony.[38] The required qualifications, as well as the disqualifications, to serve in Congress were intentionally kept at a minimum by the Framers of the Constitution to allow the people broad discretion to send whom they wish to represent them in Congress.[39] That is, the people voting in a district or state, rather than the institutions of Congress, the courts, or the executive, were meant to substantially control their own decisions concerning their representation in the federal legislature.

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PENSIONS Officers and employees of the United States, including Members of Congress, do not, upon indictment for any crime, nor upon conviction of every crime that constitutes a felony, forfeit the federal pensions for which they qualify and the retirement income that they have accumulated. However, the federal pensions of Members of Congress will be affected in two general instances: upon the conviction of a crime concerning any of the national security offenses listed in the so-called “Hiss Act,” and upon the conviction of any one of several felony offenses relating to public corruption and abuse of one’s official position in the Congress. Under the so-called “Hiss Act,” Members of Congress, in a similar manner as most other officers and employees of the federal government, forfeit all of their federal retirement annuities for which they had qualified if convicted of a federal crime which relates to disclosure of classified information, espionage, sabotage, treason, misprision of treason, rebellion or insurrection, seditious conspiracy, harboring or concealing persons, gathering or transmitting defense information, perjury in relation to those offenses, and other designated offenses relating to secrets and national security offenses against the United States.[40] Additionally, under provisions of law more recently enacted in the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, (S. 1, 110th Congress), a Member of Congress will lose all “creditable service” as a Member for federal pension purposes if that Member is convicted for conduct (occurring after the enactment of this law and while that person was a Member) which constitutes a violation of any one of a number of federal laws concerning corruption in office. These laws include, for example, bribery and illegal gratuities; acting as an agent of a foreign principal; wire fraud, including “honest services” fraud; bribery of foreign officials; depositing proceeds from various criminal activities; obstruction of justice or

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intimidation or harassment of witnesses; an offense under “RICO,” racketeer influenced and corrupt organizations; conspiracy to commit an offense or to defraud the United States to the extent that the conspiracy constitutes an act to commit one of the offenses listed above; conspiracy to violate the post-employment, “revolving door” laws; perjury in relation to the commission of any offense described above; or subornation of perjury in relation to the commission of any offense described above.[41] As to the loss of one’s federal pension annuity, or the loss of creditable service as a Member for the purposes of the Member’s retirement annuity, the nature of the offense is controlling; and it does not matter if the individual resigns from office prior to or after indictment or conviction, or if the individual is expelled from Congress.

REFERENCES

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[1]

[2]

[3]

[4]

[5] [6]

The Fourteenth Amendment to the Constitution, at Section 3, provides a disqualification for one who, having taken an oath of office to support the Constitution, “engages in insurrection or rebellion against,” or aids or abets the enemies of, the United States. This disqualification does not appear to be self-executing with respect to a Member, and would appear to require some act on the part of the House to find and declare a seat vacant on the grounds of such disqualification. Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); Cook v. Gralike, 531 U.S. 510 (2001). See Powell, at 537 n.69, discussing Madison’s position at the Constitutional Convention that qualifications of the elected “were fundamental articles in a Republican Govt. and ought to be fixed by the Constitution.” 2 Farrand 249250. The question of “qualifications” does not, however, foreclose each House of Congress from judging a Member’s “fitness” for office under the authority of Article I, Section 5, clause 2, in a disciplinary proceeding (see discussion of “congressional discipline” in this report, below). Conference Rules, 1 09th Congress, Rule 26; see discussion in CRS Report RS22034, House Ethics Rules Changes in the 109th Congress, by Mildred L. Amer. Conference Rules, supra at Rule 25. Democratic Caucus, U.S. House of Representatives, “Rules of the Democratic Caucus,” amended February 9, 2005, Rule 48.

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[9]

[10] [11]

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[12]

[13]

[14] [15]

Jack Maskell “Rules of the Democratic Caucus,” Rule 50; note discussion in CRS Report RS22034, supra at 4. See, for example, Rules of the House Democratic Caucus, Rule 49 and Rule 51 (2005); Rules of the House Republican Conference, Rule 27 (109th Congress). Becasuse these provisions are merely party conference or caucus rules, as opposed to Rules of the House, they may simply be changed by the political parties in the House themselves, without the necessity of the adoption of a formal House resolution, such as a House Rule change would require. Note Brown and Johnson, House Practice, Chapter 50, at 826827 (2003). House Rules are changed by way of adoption of a resolution and may sometimes be effectuated through unanimous consent or by special order. See discussion of suspension concerning “congressional discipline” below and Deschler ’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, 94th Cong., 2nd sess., 187 (1976). House Rule XXIII (2). House Committee on Standards of Official Conduct, “Dear Colleague” letter from the Chairman and Vice Chairman, April 15, 2002. See, e.g., VIII Cannon’s Precedents of the House of Representatives, § 2205, concerning Representative Frederick Zihlman of Maryland, indicted December 10, 1929: “Prior to adjudication by the courts, the House took no note of criminal proceedings brought against a Member....” Prior to the 1 970s the House generally waited until after the final appeal of a criminal conviction, see H.Rept. 1477, 94th Cong., 2nd sess. at 2 (1976): “The Committee [on Standards of Official Conduct] believes that the House of Representatives, when considering an action against a Member who is currently involved in an active, nondilatory criminal proceeding against him ... ordinarily should follow a policy of taking no legislative action until the conviction is finally resolved.” However, in more recent cases, the House has demonstrated that it will take action after a Member’s conviction, but before appeal. See discussion in this report, below, of Members who have been convicted. See, e.g., “Historical Summary of Conduct Cases in the House of Representatives,” Committee on Standards of Official Conduct (November 2004), noting at least four such postponements or deferrals in 1982, 1987, 1988, and 1998. H.Res. 451, 110th Cong., 1st sess., adopted June 5, 2007. 153 Congressional Record, H5971 (daily ed., June 5, 2007). (Mr. Hoyer).

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[16] Although early authorities indicated that the power to suspend a Member from proceedings was an inherent authority “analogous to the right of expulsion” (see Cushing, Law and Practice of Legislative Assemblies, Section 627, p. 251[9th ed. 1874]), substantive arguments and questions have been raised concerning the power of the House or Senate in this regard. See, for example, discussion in II Hinds’ Precedents, § 1665 (1907) regarding action on Senators Tillman and McLaurin for fighting on the floor of the Senate. See also Deschler’s Precedents, Chapter 12, § 15, H. Doc. No. 94-661, 94th Cong., 2nd sess., 187 (1976), noting that the “House [has] indicated its more recent view that a Member could not be deprived involuntarily of his right to vote in the House.” Mandatory suspension, Members agreed, would “deprive the district, which the Member was elected to represent, of representation....” 121 Cong. Rec. 10341, April 16, 1975. As discussed above, however, Members are expected to conform to and abide by the abstention provision after conviction. H.Rept. 93-616, 93rd Cong., 1st sess., 4 (1973), and “Dear Colleague” letter from House Committee on Standards of Official Conduct, April 15, 2002. [17] VIII Cannon’s Precedents, at § 2205. Although the House took no formal action upon Mr. Zihlman and his status as a Committee Chair, it was noted that “... in compliance with an unwritten rule of the House, Mr. Zihlman refrained from active participation in the proceedings of the House, and the Committee was represented on the floor by the ranking member....” [18] See discussion in H.Rept. 96-1387, 96th Cong., 2nd sess., 4-5, In the Matter of Representative Michael J. Myers (1980). Note beginning of Committee proceedings in the case of Representative Flood, even after his original trial for bribery ended with a hung jury. H.Rept. 96-856, 96th Cong., 2nd sess., In the Matter of Representative Daniel J. Flood (1980). See, generally, CRS Report 88-197A, House Discipline of Members After Conviction But Before Final Appeal, by Jack Maskell, March 1, 1988 (available from the author). [19] Rules of the Committee on Standards of Official Conduct, Rule 14(a)(4), 18(a) and (e). [20] See House expulsions of Representative-elect John B. Clark of Missouri (1861), Representative John W. Reid of Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861), for disloyalty to the Union. II Hinds’ Precedents, at §§ 1261, 1262. [21] H.Rept. 96-1387, 96th Cong., 2nd sess., In the Matter of Representative Michael J. Myers (1980); 126 Congressional Record 28,953 - 28,978

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[22]

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[23]

[24]

[25]

[26]

[27] [28]

Jack Maskell (October 2, 1980). Representative Myers was expelled after conviction for bribery, conspiracy, and violation of the Travel Act. H.Rept. 107-594, 107th Cong., 2nd sess., In the Matter of Representative James A. Traficant, Jr. (2002), 148 Congressional Record H5375-5393 (daily ed., July 24, 2002). Representative Traficant was expelled after conviction of conspiracy to violate federal bribery laws, receipt of illegal gratuities, obstruction of justice, conspiracy to defraud the United States, filing false income tax returns, and racketeering. Note, e.g., H.Rept. 97-110, 97th Cong., 1st Sess., In the Matter of Representative Raymond F. Lederer (1981)[ABSCAM]; and H.Rept. 100-506, 100th Cong., 2nd sess., In the Matter of Representative Mario Biaggi (1988), [illegal gratuities, obstruction of justice and Travel Act]. Note also case of Rep. B.F. Whittemore, recommended for expulsion by Military Affairs Committee for sale of Military Academy appointments, who subsequently resigned in 1870, and was then censured in abstentia by House (II Hinds’ Precedents, § 1273); and House censure of John DeWeese after his resignation (also for the sale of Academy appointments), but before committee reported resolution of expulsion (Id. § 1239). See also expulsion resolutions for bribery and subsequent resignations of Representatives William Gilbert, Frances Edwards, and Orasmus Matteson, in 1857 (II Hinds’ Precedents, § 1275). H.Rept. 570, 63rd Cong., 2nd sess. (1914); and H.Rept. 27, 90th Cong., 1st sess., 24-26, 29, In re Adam Clayton Powell (1967)(recommending censure). For a more detailed discussion of disciplinary action taken by the House concerning its Members, see CRS Report RL3 1 382, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives, by Jack Maskell, and House Committee on Standards of Official Conduct, “Historical Summary of Conduct Cases in the House of Representatives” (November 2004). Note more detailed discussion of recall, generally, in CRS Report RL3001 6, Recall of Legislators and the Removal of Members of Congress from Office, by Jack Maskell. Article I, Section 5, cl. 2. See discussion in Deschler ’s Precedents of the United States House of Representatives, Volume 2, Chapter 7, § 13 (1977), and VI Cannon’s Precedents of the House of Representatives, § 65 (1935); note, e.g., United States Constitution, Article I, Section 6. Note also “disqualification”

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[30]

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[31]

[32]

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provision in the Fourteenth Amendment, Section 3, where one may be “disqualified” from holding congressional office for engaging in insurrection or rebellion against the United States or giving aid or comfort to our enemies after having taken an oath to support the Constitution (see discussion concerning House “exclusions” and disqualifications, presumptively on 14th Amendment grounds, of socialist and pacifist Victor Berger of Wisconsin in 1919, and again in 1920, VI Cannon’s Precedents, § §56-59; also Powell v. McCormack, 395 U.S. 486, 545, n.83 (1969)). I Elliot, Debates on the Adoption of the Federal Constitution, 143-144, 172, and II Elliot, supra, at 289 (1888); 3 Farrand, Records of the Federal Convention of 1 787, 173 (Appendix A); note also ratifying debate on lack of authority for state recall in the Constitution, in Swan, “The Use of Recall in the United States,” The Initiative, Referendum and Recall, National Municipal League Series, (Munro, editor), at 298, n. 2 (1912). Thomas E. Cronin, Direct Democracy, The Politics of Initiative, Referendum, and Recall, at 129 (Harvard University Press, 1989). Burton v. United States, 202 U.S. 344, 369 (1906): “The seat into which he was originally inducted as a Senator from Kansas could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers”; note, also Biennial Report and Opinions of the Attorney General of the State of Oregon 313, (April 19, 1935): “[I]t has been uniformly held that jurisdiction to determine the right of a Representative in Congress to a seat is vested exclusively in the House of Representatives ... [and] a Representative in Congress is not subject to recall by the legal voters of the state or district from which he was elected. Should this [state] constitutional amendment be so construed as applying to the recall of a Representative in Congress it would to that extent be inoperative.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 800-805 (1995); Cook v. Gralike, 531 U.S. 510, 522-523 (2001); Justice Joseph Story, Commentaries on the Constitution, Vol. I, § 627 (1883). The Supreme Court has expressly found that a state could not have “reserved” the power, under the 1 0th Amendment, to alter terms of a Member of Congress, because those terms of office (as well as those offices themselves) were only established in the United States Constitution, and the States thus could never previously have had that power over Member’s terms to “reserve”: “Petitioners’ Tenth Amendment argument misconceives the nature of the

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[33] [34]

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[35] [36]

[37] [38]

Jack Maskell right at issue because that Amendment could only ‘reserve’ that which existed before. As Justice Story recognized, ‘the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them .... No state can say, that it has reserved, what it never possessed.’” U.S. Term Limits, Inc., at 802; see also Cook v. Gralike, at 522. 2 U.S.C. § 39. Certain statutes, for example the federal bribery law (18 U.S.C. § 201), purport to have as an express punishment the disability to hold any office of profit or trust under the United States. Such a disqualification by statute, however, was found by the Supreme Court not to disqualify a person from being a Senator or Representative in Congress because the only qualifications and disqualifications for such elective offices are set out exclusively in the United States Constitution, and these constitutional provisions may not be added to or affected by statute. Burton v. United States, 202 U.S. 344 (1906). Powell v. McCormack, supra. Although the authority for each House of Congress to discipline by means such as expulsion or censure is not restricted on the face of the Constitution (except for the two- thirds requirement to expel), it has been a general practice and policy in Congress not to expel a Member for past offenses if the electorate knew of the offenses involved, and still chose to elect or reelect that individual as their representative in Congress. See discussion in Constitution, Jefferson’s Manual and Rules of the House of Representatives, § 64; H.Rept. 570, 63rd Cong., 2nd sess. (1914), VI Cannon’s §398, 557-558; Powell v. McCormack, supra at 508; Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel - An Exercise in Self Restraint,” 29 Syracuse Law Review 1071, 1089-1090 (1978). However, both the House and the Senate have otherwise disciplined a Member even after re-election, such as through censure, for past misconduct even if known to the electorate. H.Rept. 27, 90th Cong., 1st Sess., supra at 27. House Rule XXIII(10). States may not add qualifications for federal office additional to those established in the Constitution, such as requiring that a congressional candidate not be a felon or indicted for a felony. See, specifically, State ex rel. Eaton v. Schmal, 167 N.W. 481 (Sup. Ct. Minn. 1918); and U.S. Term Limits, Inc. v. Thornton, supra; Cook v. Gralike, supra; Powell v. McCormack, 395 U.S. 486, 522, 547-550 (1969). See discussion by

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Alexander Hamilton in The Federalist Papers, No. 60: “The qualifications of the persons who may ... be chosen, as has been remarked on other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.” Because the federal Constitution governs qualifications to hold federal office, but the States generally regulate qualifications to vote in those elections (Article I, Sec. 2), there may exist the interesting anomaly of a convicted felon who may run for federal office but could be barred by State law from voting in that election. [39] Hamilton stated that “the true principle of a republic is, that the people should choose whom they please to govern them.” 2 Eliot’s Debates 257. See Powell v. McCormack, at 528, 527-536, discussing influence on Framers of England’s “Wilkes case” and the “long and bitter struggle for the right of the British electorate to be represented by men of their own choice.” [40] See now 5 U.S.C. § 8311 et seq. [41] Title IV of the “Honest Leadership and Open Government Act of 2007,” P.L. 110-81, 121, Stat. 735 (Sept. 14, 2007)[S. 1, 110th Congress].

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Chapter 5

LOSS OF FEDERAL PENSIONS FOR MEMBERS OF CONGRESS CONVICTED OF CERTAIN OFFENSES *

ABSTRACT

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Under provisions of existing federal law commonly known as the "Hiss Act," Members of Congress, in a similar manner as other federal officers and employees, currently lose their federal employee retirement annuities if they are convicted of certain designated federal crimes relating to disloyalty or involving national security or national defense-related offenses against the United States. Legislative proposals have been introduced in the last several Congresses to expand the crimes for which the loss of such pensions would result as an additional penalty for the commission of those designated offenses. Any new or additional penalty, such as forfeiture of one's federal pension, which attaches to the commission of an offense would, however, under the Constitution's ex post facto prohibition, have to apply prospectively only, and could not work retroactively to take away the pensions of Members of Congress or former Members who had already engaged in the covered criminal misconduct prior to the passage of such new legislation. Under current law, Members of Congress and other federal officials who lose their pension annuity payments for violation of certain national security-related crimes, may receive back their own contributions to the retirement fund, and would not forfeit their own savings and earnings in the Thrift Savings Plan under the Federal Employee Retirement System (FERS). Changing the annuities that one is to receive under the federal retirement program does not violate "contract" principles, nor does such consequence of a conviction of certain federal laws constitute an improper *

This is an edited, excerpted and augmented edition of a Congressional Research Service Publication 96-530, dated January 12, 2007.

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Jack Maskell taking of property violative of the Fifth Amendment. A few of the new proposals, however, would require loss of one's contributions to the retirement system, and the loss of one's own savings and earnings in the Thrift Savings Plan. Because of the nature of the vested "property" interest that a Member or employee has in his or her own contributions to the retirement system and in his or her own savings and earnings in the Thrift Savings Plan, any provisions which would require loss of such property would have to conform to certain constitutional criteria, and would raise issues as to whether such loss and forfeiture of vested property may constitute an excessive fine under the Eighth Amendment. This report discusses the current law with respect to the loss of the federal pension of a Member of Congress for the conviction of certain crimes, and discusses generally legislative proposals to amend the provisions of this law to expand the scope and coverage of those provisions requiring the loss of a Member's pension.

INTRODUCTION

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"Hiss Act" Background Congress enacted legislation in 1954 to prohibit the distribution of any federal retirement annuities to federal officers and employees, including Members of Congress, who were convicted of various offenses under federal law relating to disloyalty, the national defense and national security, conflicts of interest, bribery and graft, and for federal offenses relating generally to the exercise of one's "authority, influence, power, or privileges as an officer or employee of the Government."[1] The passage of this legislation was prompted to a great extent by the celebrated case of Alger Hiss, a federal worker in the Department of State who had been charged and convicted of perjury in relation to the passing of national security secrets to a communist agent,[2] and the law is now commonly referred to as the "Hiss Act." In 1961 Congress amended the statute relating to the loss of pensions of federal officers and employees to narrow the coverage of the law to what were considered more serious offenses dealing only with disloyalty and national security and defense, and withdrawing from coverage violations of crimes which were either relatively minor in nature, or not considered sufficiently related to protection of the United States. There was concern expressed that the original law "went too far,"[3] and unduly punished former federal officials (and their innocent families) when the former employee or official, in addition to facing fine and imprisonment for an offense, may be left destitute without any retirement income at all for the violation of "comparatively minor offenses."[4]

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Current Provisions Regarding Federal Retirement Annuity Payments Members of Congress, in a similar manner as most other officers and employees of the Government,[5] now forfeit the federal retirement annuities for which they had qualified if the Member, officer, or employee is convicted of a federal crime which relates to espionage, treason or other national security offense against the United States, as expressly designated in the so-called "Hiss Act."[6] The provisions of this law concerning forfeiture of pensions apply, at 5 U.S.C. § 8312, to convictions for such offenses as, for example, disclosure of classified information, espionage, sabotage, treason, misprision of treason, rebellion or insurrection, seditious conspiracy, harboring or concealing persons, gathering or transmitting defense information, perjury in relation to those offenses, and other designated offenses relating to secrets and national security. The nature of the offense of which one is convicted thus controls whether an executive official, Member or employee loses his or her federal pension. It does not appear to matter if the Member or employee resigns from office prior to or after indictment or conviction of such offense or, in the case of a Member of Congress, is expelled from Congress or, in the case of federal executive officers (other than the President),[7] if the officer is impeached and removed. A person convicted of a crime generally may be subject to incarceration and a monetary fine, and in the case of a federal official such as a Member of Congress, may be liable in an action to recover all sums of monies improperly received (e.g., a bribe) under a theory of "constructive trust."[8] Furthermore, under the "forfeiture" provisions of federal law, the property used in the commission of a federal offense, as well as the property obtained from the proceeds of illegal activity may be "forfeited" to the federal government.[9] Other than for conviction of the disloyalty and national security offenses currently designated in the "Hiss Act," however, there is at this time no additional penalty imposed, such as the loss of one's retirement annuity income, over and above relevant fines, restitution, forfeiture and imprisonment relating to the conviction of a felony generally, or to the conviction of other crimes which may specifically indicate a breach of the public trust.[10]

Employee Contributions and Thrift Savings Current law regarding the denial of pension benefits to those convicted of certain disloyalty and national security offenses applies generally to the loss of one's "annuity or retired pay" under the federal pension system.[11]The existing law on loss of

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pension rights specifically provides that while persons convicted of covered offenses may be denied the annuity payments from their Government pension, those persons, upon proper application, may receive back their own contributions that they have made into the retirement system. The provisions of 5 U.S.C. § 8316 currently provide that "the amount, except employment taxes, contributed by the individual toward the annuity ... shall be refunded upon appropriate application."[12] Furthermore, interest on the employee's contributions at the prevailing rate is repayable, generally up until the time that the employee has committed the covered offense."[13] The original "Hiss Act" provisions on forfeiture of annuities were enacted before the adoption of the new Federal Employee Retirement System [FERS], and the "Hiss Act" provisions were not specifically amended to expressly address the new retirement provisions of FERS.[14] Although the "Hiss Act" was not itself amended, the FERS legislation expressly provides that upon a forfeiture of annuities under the "Hiss Act," an employee also forfeits the Government contributions, and all the earnings attributable to such contributions, in the employee's Thrift Savings Plan.[15] This would indicate that under the current operation of law, employees and Members convicted of offenses under the "Hiss Act" who lose their annuity and lose the Government contributions and earnings from those contributions in the Thrift Savings Plan, are allowed to receive back their own contributions and all the earnings attributable to those voluntary contributions in the Thrift Savings Plan.

Spouse and Dependant Beneficiaries Under provisions of current law, when a Member of Congress, or other federal officer or employee forfeits his or her federal annuity/pension because of a conviction for one of the offenses covered under the Hiss Act provisions of federal retirement law, that pension is not paid even to an "innocent" spouse or dependant of the Member, officer or employee, except under special circumstances for a "cooperating spouse." Federal law now provides that the spouse of a Member, officer or employee who forfeits his or her pension shall be eligible for "spousal pension benefits" if the Attorney General "determines that the spouse fully cooperated with Federal authorities in the conduct of a criminal investigation and subsequent prosecution of the individual which resulted in such forfeiture."[16]

Legislative Proposals Legislation and amendments introduced and considered over the years in Congress have proposed to expand the circumstances under which a Member of Congress

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and, in some legislative proposals, congressional or other Government employees, would lose their rights to annuity payments from the Federal Government if they were convicted of a wider range of criminal offenses than now contained in the so-called "Hiss Act".[17] A provision adopted by the Senate in the 110th Congress, as an amendment to the ethics and lobbying legislation under consideration, S. 1, would add to the current list of offenses for which a federal official might lose his or her pension certain specific crimes "committed by a Member of Congress."[18] The crimes committed by a Member of Congress that would result in forfeiture of one's federal annuities would be the conviction of any offense in the purview of 18 U. S.C. § 201, relating to bribery and illegal gratuities; violations of 18 U.S.C. § 371, conspiracy, when the conspiracy involves the commission of an act within the purview of the bribery law; or perjury or subornation of perjury when it relates to denying the commission of an offense violative of the bribery statute, or of the conspiracy statute concerning a conspiracy to violate the bribery law. This provision is somewhat analogous to the legislative proposal adopted by the House (but not acted upon by the Senate) in the 109th Congress as part of H.R. 4975, section 601, which would have required Members of Congress to forfeit their federal pension annuities if convicted of an offense occurring while in office which related to bribery (18 U.S.C. § 201), acting as an agent of a foreign principal (18 U.S.C. § 219), or conspiracy (18 U.S.C. § 371) to commit either of those two offenses. Proposals in the past have at times recommended the expansion of the crimes for which a Member, officer or employee, may lose his or her pension to include the conviction of "any felony" under federal or State law committed while the Member or employee was in office. Other proposals introduced in Congress in the past have more narrowly focused on particular criminal offenses under federal law which may indicate conduct which constituted a breach of the public trust or abuse of one's official position or authority. These narrower proposals often include such offenses as bribery (18 U.S.C. § 201), conflicts of interest (18 U.S.C. § 203), theft or embezzlement of government money or property (18 U.S.C. § 641), conspiracy to defraud the United States Government (18 U.S.C. § 371), false or fraudulent statements to the United States (18 U.S.C. § 1001), mail or wire fraud, including "honest services" fraud (18 U.S.C. § 1341, 1343, 1346), false claims against the Government (18 U.S.C. §§ 286, 287), vote buying and certain other election crimes (18 U.S.C. §§ 597, 599, 601, 602, 606, 607), and perjury committed in relation to denying the commission of acts constituting a violation of these criminal provisions. It may be noted that although the impetus for adopting more severe provisions concerning the loss of pensions of Members of Congress has appeared to be the

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relatively recent convictions and guilty pleas of Members and former Members of Congress who were found to have abused their position of trust, not all similar convictions and guilty pleas would be covered in the future under the Senate-passed version (S. 1, 110th Congress), or the House-passed version of the legislation in the 109th Congress. While the provisions of S. 1, 110th Congress, and H.R. 4975, 109th Congress, would require the forfeiture of one's pension for the commission of an offense violative of the bribery statute (18 U.S.C. § 201), and would thus cover, subsequent to the enactment of the law, situations similar to the convictions concerning some former Members,[19] it would not deprive the annuity payments in the future to other Members or former Members who might be found, or might plead guilty to federal charges other than bribery, such as for the so-called "honest services" fraud provision of the mail and wire fraud statutes (18 U.S.C. §§ 1341, 1343, 1346).[20] As to the loss of employee contributions and Thrift Savings Plan monies, certain legislation proposed in Congress would continue the current operation of the law with respect to employee contributions to the government retirement system, and with respect to the contributions, savings and earnings in the Thrift Savings Account; that is, those convicted under offenses covered by the forfeiture provisions may receive back their own contributions to the retirement system, and their own contributions and earnings in the Thrift Savings Plan account. Some proposed legislation would permit a Member or employee who loses his or her annuity payments to receive back all the money credited to the Member's or employee's account in the Thrift Savings Plan, apparently including the Government contributions and the earnings attributable to such contributions. Other proposals, however, would have changed the operation of the current statutory scheme by expressly denying those persons covered by the provisions of the new legislation (usually Members of Congress and congressional staff who have committed certain offenses while in office) the right to receive back even their own contributions to the retirement system, and would also require them to forfeit their own savings, contributions and earnings which they made to and which have accrued in the Thrift Savings Plan.

CONSTITUTIONAL ISSUES Retroactivity and Ex Post Facto Laws As noted, much of the impetus for the legislative proposals appears to be derived from recent convictions or guilty pleas of former Members of Congress who were charged with misconduct while they were in office, and who, according to press reports, will

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continue to receive substantial annuity payments under the federal retirement system.[21] Although the target of and motivation for the legislation may be certain infamous cases of official misconduct by veteran former Members of Congress, any new legislation adopted by Congress would have to apply prospectively only, and would not appear to be able to apply, as a constitutional matter, retroactively to cut off or lessen the annuities of those former Members as a penalty for having engaged in any criminal misconduct prior to the enactment of the new legislation. The effect of the proposals under consideration would be to increase the "penalty" for the commission of certain crimes to include not only the statutorily designated fine and/or imprisonment, but also to include the loss of one's federal pension for the commission of crimes for which loss of such pension is not now a penalty. Legislation which attempts to increase the penalty for acts which were committed before the enactment of that legislation, would raise serious constitutional issues concerning ex post facto laws. The United States Constitution provides at Article I, Section 9, clause 3, in the express limitations upon Congress, that "No Bill of Attainder or ex post facto Law shall be passed." A prohibited ex post facto law is one which makes criminal an action which when engaged in was innocent under the law, or, as explained by the Supreme Court in 1798: "Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed" is a prohibited ex post facto law.[22] Chief Justice Marshall explained simply and clearly that an ex post facto law "is one which renders an act punishable in a manner in which it was not punishable when it was committed."[23] Although Congress may not increase the penalty or "punishment" for an act after-the-fact, that is, for conduct that has already occurred, the Court has allowed certain legislation that it deemed to be "regulatory" rather than punitive in nature and intent, which did in fact affect the rights or property of individuals after an act had already been committed.[24] However, regarding specifically the pensions of federal officers and employees, a lower federal court in the celebrated Alger Hiss case found that the "Hiss Act" was, if applied retroactively to deny Alger Hiss his pension, punitive in nature and not regulatory,[25] and was therefore a prohibited ex post facto law adopted by Congress after Hiss had engaged in the subject conduct: The question before us is not whether Hiss or Strasburger are good or bad men, nor is it whether we would grant them annuities if we had unfettered discretion in the matter. The question is simply whether the Constitution permits Congress to deprive them of their annuities by retroactive penal legislation. We conclude that it does not. We hold that as applied retroactively to the plaintiffs the challenged statute is penal, cannot be sustained as regulation, and is invalid as an ex post facto law prohibited by the Constitution.[26]

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It would therefore appear from the judicial precedents that the application of any provision to deny a pension to one who was a Member of Congress or a congressional employee for the commission of a crime deemed to be a felony under federal or State law, could be prospective only, that is, to apply to criminal conduct engaged in from the time of the enactment of that provision forward; but could not apply, under the ex post facto clause of the Constitution, to deprive former Members of Congress or congressional staff of their pensions for the conviction of crimes that occurred prior to the enactment of the proposed legislation.

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Contracts, Takings, and Due Process Issues There may be several constitutional issues which arise in provisions of law which require, upon the conviction of certain criminal offenses, the loss of one's retirement annuity payments, and/or the forfeiture of an employee's own contributions to the system as well as the employee's own savings and earnings in his or her Thrift Savings Plan account. As to any future annuity payments affected, even those "earned" or expected prior to the commission of the particular crime in question, judicial precedents have provided a clear indication that future annuity payments to be provided by the Government for its officers, employees, veterans or others, do not create a current property right or interest in such future payments, but rather create a mere "expectancy" or "government fostered expectation" which may be modified, revoked or suspended by the authority granting it through subsequent legislation.[27] That is, as specifically found by federal courts, "even where ... there has been compulsory contribution to a retirement or pension fund the employee has no vested right in it until the particular event happens upon which the money or part of it is to be paid,"[28] and thus a "pension granted by the Government confers no right which cannot be revised, modified or recalled by subsequent legislation."[29] There would thus appear to be no violation or abrogation of any specific "contract" by increasing the penalties for the violations of certain specific crimes to include forfeiture or partial forfeiture of anticipated federal annuity payments, even those future benefits which had accrued (or for which credit had been "earned") prior to the commission of the crime.[30] It should be noted that the current provisions of the so-called "Hiss Act," originally adopted in 1954,[31] operate in the manner questioned, that is, a federal officer's or employee's annuity payments, even those that were "credited" to him or her or "earned" over the course of many years with the federal government, may be forfeited upon the subsequent conviction of one of the particular national security- related crimes designated in the Hiss Act.[32] While there exists no current property interest or vested right in future benefits and payments under the federal retirement system, there are substantial

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arguments and indications that there does exist a current, vested property interest of federal employees in their own contributions that such employees or officers make to the retirement system. In a tax related case, a United States Court of Appeals found that an employee's contributions to the retirement system "represent valuable rights which were vested in him at the time ..." and are therefore currently taxable income to the employee: "Present vesting of a right, even if its enjoyment is postponed to the happening of a future event, is an important aspect of gross income for income tax purposes."[33] As to the employee contributions to and earnings in the Thrift Savings Plan, the legislative history of the provisions establishing the Federal Employee Retirement System (FERS) indicates that Congress intended for such an account and its earnings to be a current vested property interest of the employee, which is not merely a promised future benefit, but rather "is an employee savings plan" where the "employee owns the money" which is merely being held "in trust for the employee and managed and invested on the employee's behalf ...."[34] The United States Court of Appeals for the Federal Circuit has explained that where there is more than the mere expectation in future benefits, and where the employee's rights have already vested in certain amounts, then the retiree has a "protected property interest" in such amounts already vested.[35] There may thus be different legal and constitutional considerations concerning the denial of future annuity payments to federal employees, as opposed to the forfeiture of one's own contributions to the retirement system or to the Thrift Savings Plan.[36] This is not to say, of course, that the Government may not by law provide for the loss or abdication of an employee's own "property" through fine, forfeiture or other such transfer of that money or property, but rather that legislation which would change the current law to require loss or forfeiture of vested "property" must meet certain constitutional criteria. The Constitution states in the prohibitions and restrictions of the Fifth Amendment a limitation on depriving someone of property without due process of law and upon "takings" of private property: "No person shall ... be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation." The United States Court of Appeals in United States v. Adams, explained that Government benefits and entitlements under a compensation statute may be subject to procedural due process rights only, as opposed to being "property" under the Takings Clause of the Fifth Amendment: We disagree that Appellants own any Fifth Amendment property interest pursuant to the FLSA statute. Appellants confuse a property right cognizable under the Takings Clause of the Fifth Amendment with a due process right to payment of a monetary entitlement under a compensation statute.[37]

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The court there noted approvingly the trial court's reliance on Commonwealth Edison Co. v. United States,[38] for the trial court's holding that "a governmental obligation to pay money pursuant to a statute is not a protected property interest under the Takings Clause."[39] Furthermore, the Supreme Court of the United States has affirmed, it should be noted, that the governmental taking even of vested "property," such as in a forfeiture pursuant to the exercise of some governmental authority like a criminal or other judicial proceeding, which is not an exercise of the power of eminent domain, is not subject to the takings clause of the Fifth Amendment:

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The government may not be required to compensate an owner for property which it has already lawfully acquired under the exercise of governmental authority other than the power of eminent domain.[40]

As to one's due process rights even in the deprivation of "property," if the loss of the property in the case of forfeiting one's retirement contributions is only subsequent to, and is only a consequence of and pursuant to the finding of guilt in a criminal proceeding, then it would appear that the individual subject to such loss will have received all of the procedural due process guarantees under the Constitution which accompany such criminal proceedings. Even vested property of an individual may be forfeited provided it is not taken arbitrarily or merely by legislative fiat, with no procedural due process rights given to the employee, but only pursuant to and incidental to guilt in a criminal proceeding conducted with the full panoply of constitutional protections.

Excessive Fines The loss of one's own contributions to the retirement system, including one's accumulated savings and earnings in the Thrift Savings Plan, may, however, raise important constitutional issues under the Eighth Amendment's "Excessive Fines" Clause which are not so readily resolved. The Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The loss or forfeiture to the Government of a federal officer's or employee's "property" which is contingent only upon the conviction of a particular set of crimes would appear to constitute a "fine," as part of the "punishment" for that offense, which is subject to the Excessive Fines Clause of the Eighth Amendment.[41] That is, the purpose of the statutory provision for the forfeiture of an employee's own

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contributions and retirement savings upon the conviction of certain crimes would appear, in the words of the Supreme Court, to be not solely "remedial," but rather "also serving either retributive or deterrent purposes, [and therefore] is punishment, as we have come to understand the term."[42] There has been no clear indication from the Supreme Court as to the parameters or specific standards to be applied in Excessive Fines Clause cases. The Court expressly noted in Austin v. United States, supra, that it would "decline th[e] invitation" to "establish a multifactor test for determining whether a forfeiture is constitutionally ' excessive,'"[43] and would instead allow the lower courts to consider such questions based upon the various factors which they may apply to the particular facts. Justice Scalia, writing in concurrence in Austin, noted, however, that an "excessiveness analysis" for in rem forfeiture cases may pose different issues under the Eighth Amendment than cases dealing with monetary fines or even in personam forfeiture cases. As to monetary fines Justice Scalia noted the general principle that

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In the case of a monetary fine, the Eighth Amendment's origins in the English Bill of Rights, intended to limit the abusive penalties assessed against the King's opponents, ... demonstrate that the touchstone is value of the fine in relation to the offense.[44]

An earlier Supreme Court case, Solem v. Helm,[45] discussed the general principles behind the Eighth Amendment's limitations on excessive fines and cruel and unusual punishments in a case dealing specifically with the Cruel and Unusual Punishment Clause relative to sentencing to life imprisonment without parole.[46] Although limited in application to sentencing cases dealing with life imprisonment without parole, the dicta in Solem provides a useful overview that may be used in arguments regarding proportionality in excessive fines cases: The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence.... The English Bill of Rights repeated the principle of proportionality in language that was later adopted in the Eighth Amendment: "excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted." 1 Wm. & Mary, sess. 2, ch. 2 (1689). Although the precise scope of this provision is uncertain, it at least incorporated "the long standing principle of English law that the punishment ... should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged." R. Perry, Sources of Our Liberties 236 (1959).... When the Framers of the Eighth Amendment adopted the language of the English Bill of Rights, they also adopted the English principle of proportionality.

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Indeed, one of the consistent themes of the era was that Americans had all the rights of English subjects.... The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century.[47]

Federal cases that had looked at monetary fines (not dealing with "forfeiture")[48] under the Excessive Fines Clause had not established any specific test or definition of "excessive," but had applied a "reasonableness" principle which is specific to the facts of that particular case and which generally examines the severity of the offense in relation to the amount of the fine. In United States ex rel Smith v. Gilbert Reality Co., Inc.,[49] the court looking at fines under the Federal False Claims Act found that an excessiveness test would apply "similar reasoning in the due process review of excessive punitive damage awards," that is, that the court "need not, and indeed ... cannot, draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. We can say, however, that a general concern of reasonableness ... properly enter[s] into the constitutional calculus!"[50] In determining the excessiveness of a fine in that case, the court noted: "The degree of excessiveness is not determined by application of a three prong test [i.e., the Solem proportionality test for sentences of life imprisonment without parole under the Cruel and Unusual Punishment Clause], or any other similar test the Court normally has available to it in similar matter."[51] Rather, the court found that to consider excessiveness it needed to "examine the nature of the conduct, rather than simply adopt a mathematical proportion."[52] Similarly, in United States v. Advance Tool Co.,[53] in noting that the Smith court "considered the nature of the defendant's conduct," the court "conducted a thorough examination of Plaintiff's illegal conduct." The court found that based on various factors, and not merely the nature of the conduct, a civil penalty of $3,430,000 "would be unconstitutionally excessive under the Eighth Amendment."[54] The Supreme Court in 1998 for the "first time in its history ... [struck] down a fine as excessive under the Eighth Amendment," in United States v. Bajakajian.[55] In ruling that an in personam forfeiture was a fine constituting punishment, and that such fine/forfeiture could be "excessive" under the Eighth Amendment, the Court did not apply a strict "proportionality" rule, but rather expanded on the reasonableness principle underlying the proportionality rule by finding that a fine may be excessive "if it is grossly disproportional to the gravity of a defendant's offenses." The majority of the Court there explained:

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The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the forfeiture must bear some relationship to the gravity of the offense that it is designed to punish. ... Until today, however, we have not articulated a standard for determining whether a punitive forfeiture is constitutionally excessive. We now hold that a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the defendant's offense.[56]

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Since the text of the clause in question and its history do not provide "just how proportional to a criminal offense a crime must be," the Court relied on "other considerations" in determining the standards to apply: The first, which we have emphasized in our cases interpreting the Cruel and Unusual Punishments Clause, is that judgments about the appropriate punishment for an offense belong in the first instance to the legislature. See, e.g., Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"); see also Gore v. United States, 357 U.S. 386, 393 (1958) ("Whatever views may be entertained regarding severity of punishment, ... these are peculiarly questions of legislative policy"). The second is that any judicial determination regarding the gravity of a particular criminal offense will be inherently imprecise. Both of these principles counsel against requiring strict proportionality between the amount of a punitive forfeiture and the gravity of a criminal offense, and we therefore adopt the standard of gross disproportionality articulated in our Cruel and Unusual Punishments Clause precedents. See, e.g., Solem v . Helm, supra, at 288; Rummel v. Estelle, 445 U.S. 263, 271 (1980). In applying this standard, the district courts in the first instance, and the courts of appeals, reviewing the proportionality determination de novo, [footnote omitted] must compare the amount of the forfeiture to the gravity of the defendant's offense. If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional.[57]

In the case of some proposed legislation under consideration, arguments may be put forth that in many cases the amount of the "fine," if it involves the loss of one's entire contributions and retirement savings and earnings, may be unreasonable and excessive in relation to some of the crimes committed which could fall within the proposed legislation's ambit. For example, in legislation which would require the loss of one's property for the conviction of "any felony" under State or federal law, if an employee or Member is convicted of a crime such as driving while intoxicated in a State where that is now considered a felony,[58] then for a long-time federal official, who has saved for many years

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under the voluntary Thrift Savings Plan, that part of the penalty for the offense could, in the future, be in the hundreds of thousands of dollars or even in excess of a million dollars.[59] In such instances, it may be argued that there is not necessarily a connection or "relationship" between the "value of the fine" and the seriousness of the underlying offense, either standing alone, or in comparison to fines levied on others for that same offense. It may, however, be argued on the other hand, that the seriousness of any criminal offense is compounded by the fact that it is committed by a public official while that official is in office. Such crimes committed by public officials while in office may implicate and impact on the trust and confidence that the general public has of public officials generally, and thus lead to the erosion of trust and respect for government and our democratic institutions. While this argument may be particularly relevant to those crimes or offenses which indicate a breach of the public trust or abuse of one's office, it may hold true of crimes and offenses generally committed by public officials while in office. The importance of the subject of the legislation and regulation may be and has been noted as a factor in determining whether a particular fine is excessive or not.[60] Furthermore, it may be argued that the savings and contributions one makes to or receives in the retirement system and thrift savings are incidental to and are in connection with one's public employment, and thus there is an argument that the loss of such money upon conviction of a felony while in public office is a "reasonable" fine as it is "related" or has a "nexus" to one's public employment and to the public interests forwarded by the legislation, including deterrence of breaches of the public trust, and restoration of confidence in public officials and democratic institutions. Concerning the issue of "proportionality," it may be argued in the case of the legislation proposed that the "value of the fine," that is, the loss of one's vested "property" (contributions to one's annuity, and savings, contributions, and earnings placed in the Thrift Savings Account) is not, by definition, "related" or "proportional" in any way to the severity of the offense committed, but rather the "value" of this fine is related solely to whether and to what extent the official or employee chose to participate in the Thrift Savings Plan, and the number of years that the official voluntarily placed savings in this account. It has been argued, for example by the Federal Retirement Thrift Investment Board that, based on a "proportionality" argument (that is, that the value of the fine is not in "proportion" to the severity of any given offense but rather is in proportion only to one's accumulation of savings and earnings), the "fine" or punishment of loss of one's Thrift Saving Plan savings and earnings would be, "on its face" and without regard to the particular facts of any individual case, an unconstitutional "excessive fine" under the Eighth Amendment.[61]

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However, neither the Supreme Court nor the United States Courts of Appeals have at this point expressed a particular formula or an strict "proportionality" rule or test that would be the sole or definitive determinative of constitutionality under the Excessive Fines Clause.[62] In cases dealing only with monetary fines, or in personam forfeitures, various factors concerning the amount of the fine or loss and the nature of the offense have been employed in determining the "reasonableness" of a fine or whether the fine is impermissible under the more recently articulated "grossly disproportional" standard under the Excessive Fines Clause. It appears that more precise standards or tests will most likely be continually developing in the lower courts to fill in the Supreme Court's general "grossly disproportional" standard. However, it would appear that the fact that the amount of a variable fine is not, in fact, in "proportion to," related to, or based upon the underlying conduct involved or the severity of any given offense, either in comparison to other fines for the same conduct, or because the differing amount of the fine does not in any way depend on the degree of the severity of the offense, could be a meaningful factor requiring consideration in any judicial determination of excessiveness of a fine under the Eighth Amendment.

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REFERENCES [1] [2]

[3]

[4] [5]

Public Law 769, 83rd Congress, 68 Stat. 1142, September 1, 1954. See H.R. Rpt. No. 2488, 83rd Cong., 2d Sess. (1954); United States v. Hiss, 185 F.2d 822 (2d Cir. 1950); note discussion of legislative history of the "Hiss Act" in Hiss v. Hampton, 388 F. Supp. 1141, 1149 - 1152 (D.D.C. 1972). Note discussion in Hiss v. Hampton, supra at 1152-1153, citing testimony in Hearings on H.R. 4601, House Committee on Post Office and Civil Service, 86th Cong., Pt Sess. (1959), see also 107 Congressional Record 19,106 (1961); 105 Congressional Record 5831, 58335835 (1959); Hearings on S. 91, Senate Committee on Post Office and Civil Service, Subcomm on Retirement, 86th Cong., 15t Sess. (1959). H.R. Rpt. No. 541, 87th Cong., l' Sess. at 1 (1961). Federal judges are not under the general federal retirement system since such Article III judges are appointed for life to serve during periods of good behavior, and receive compensation for such service "which shall not be diminished during their Continuance in Office." U.S. Constitution, Art. III, Section 1. Judges qualified to retire from regular active service receive a lifetime salary, the amount of which is dependant upon whether they meet thresholds for remaining active in senior status (in which case the salary is increased to keep pace with the current salary

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[6] [7]

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[8] [9] [10]

[11] [12] [13] [14]

[15]

Jack Maskell ofjudges), or inactive (in which case their salary stays the same as it was when they went inactive). 28 U.S.C. § 371 (see 28 U.S.C. § 372, as to disability retirement). If a judge is convicted of a felony, and is subsequently impeached and removed from office, he or she is no longer entitled to any compensation from that former office. See now 5 U.S.C. § 8311 et seq. The President is not covered by the retirement provisions applicable to other officers and employees of the federal government, but rather is granted by statute a monetary allowance for life. A President who is removed from office by impeachment and conviction, however, may not receive the lifetime stipend. See P.L. 85-745, as amended, 3 U.S.C. § 102, note. See, e.g., United States v. Podell, 572 F.2d 31 (2d Cir. 1978). 18 U.S.C. §§ 981 et seq. The conviction of certain crimes indicating a breach of the public trust may carry an additional penalty of disqualification from holding any federal office or employment. See, for example, the bribery statute, 18 U.S.C. § 201, and the prohibitions on mutilation and destruction of government property, 18 U.S.C. § 2071(b) (note also 18 U.S.C. §§ 592, 593, 1901, 2381, 2385 and 2387). These provisions could not, however, bar one from being chosen by the people as their Representative or Senator in Congress, as the constitutional qualifications for congressional office are exclusive and may not be added to by the legislature. See Burton v. United States, 202 U.S. 344, 369 (1906); Powell v. McCormack, 395 U.S. 486, 547-550 (1969). 5 U.S.C. § 8312(a). 5 U.S.C. § 8316(a). 5 U.S.C. § 8316(b). FERS provides what has been described as a three-part retirement system whereby (1) an officer or employee is required to participate in the Social Security system; (2) the officer or employee will receive a basic annuity from the Government based on service (significantly reduced from the Civil Service Retirement System [CSRS] amount); and (3) the employing Government agency will place a certain amount in a Thrift Savings Plan for that employee. In addition, the employee may choose to place up to a certain percentage of his or her income in the Thrift Savings Plan for retirement investment, and if the employee does this, the agency will match a percentage of that voluntary employee contribution. 5 U.S.C. § 8432(g)(5): "Notwithstanding any other provision of law, contributions made by the Government for the benefit of an employee or Member under subsection (c), and all earnings attributable to such contributions, shall be

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[18] [19] [20] [21]

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[23] [24] [25]

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forfeited if the annuity of the employee or Member, or that of a survivor or beneficiary, is forfeited under subchapter II of chapter 83." 5 U.S.C. 8318(e). See, for example, in the 110th Congress, H.R. 14, H.R. 97, H.R. 348, and S. 1, as amended by Senate Amendment 1; in the 109th Congress, H.R. 4975, as passed by the House on May 3, 2006, and other measures introduced, including H.R. 4535, 4524, 4518, 4548, 4546; in the 104th Congress, H.R. 350, H.R. 2244, H.R. 3310, H.R. 3447, S. 1794. Amendment No. 1, as modified by Amendment No. 3, Senator Kerry, see Congressional Record, S486-S487, 5489 (daily edition), January 12, 2007. See, for example, United States v. Cunningham, Criminal Case No. 05cr2137-LAB (SD Cal., November 28, 2005), Plea Agreement. See, for example, United States v. Ney, Criminal No. 06-cr-00272 (D.D.C. September 15, 2006), Criminal Information and Plea Agreement. Note, for example, Anderson Cooper, "Convicted congressmen collect public pensions," [http : //www. cnn. com/CNN/Programs/anders on . c ooper .360/b lo g/2007/01 /c onvi cted congressmen-collect-public.htm], Wednesday, January 03, 2007; and Roll Call, May 2, 1996, p. 3. Calder v. Bull, 3 Dall. (3 U.S.) 386, 390 (1798). Italics in original. See also Ex parte Garland, 4 Wall. (71 U.S.) 333, 377-380 (1866), noting that Congress may not increase the punishment for acts already committed by prescribing certain penalties as "disqualifications" or eligibility requirements when they operate in fact as additional punishments for a crime. Fletcher v. Peck, 6 Cranch (10 U.S.) 87, 138 (1810). See De Veau v. Braisted, 363 U.S. 144, 160 (1960); Flemming v. Nestor, 363 U.S. 603, 613-621 (1960). "The proper function of a regulation is to guide and control present and future conduct, not to penalize former employees for acts done long ago." Hiss v. Hampton, 338 F. Supp. 1141, 1148-1149 (D.D.C. 1972). Hiss v. Hampton, supra at 1153. Zucker v. United States, 758 F.2d 637 (Fed. Cir. 1985), cert. denied, 474 U.S. 842 (1985); Walton v. Cotton, 19 How. (60 U.S.) 355, 358 (1857); United States ex rel. Burnett v. Teller, 107 U.S. 64, 68 (1883); Pennie v. Reis, 132 U.S. 464 (1889); McLeod v. Fernandez, 101 F.2d 20 (1st Cir. 1938), cert. denied, Toste v. McLeod, 308 U.S. 561 (1939); Steinberg v. United States, 163 F. Supp. 590, 591 (Ct. Claims 1958); Flemming v. Nestor, 363 U.S. 603, 609-610 (1960); Stouper v. Jones, 284 F.2d 240 (D.C. Cir. 1960); United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980). Rafferty v. United States, 210 F.2d 934, 936 (3rd Cir. 1954).

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[29] Stouper v. Jones, supra at 242. [30] Adams v. United States, 391 F.2d 1212, 1221 (Fed. Cir. 2004): "Like all federal employees, Appellants served by appointment. The terms of their employment and compensation, consequently, were governed exclusively by statute, not contract"; Kizas v. Webster, 707 F.2d 524, 535 (D.C. Cir. 1983): "[Federal workers'] rights are therefore a matter of legal status even where compacts are made. In other words, their entitlement to pay and benefits must be determined by reference to the statutes and regulations governing [compensation], rather than to ordinary contract principles." [31] Public Law 769, 83rd Congress, 68 Stat. 1142, September 1, 1954, amended substantially in 1961, P.L. 87-229, 75 Stat. 640, September 26, 1961. Now 5 U.S.C. § 8311 et seq. [32] 5 U.S.C. § 8312(a). [33] Hogan v. United States, 513 F.2d 170, 174 (6th Cir. 1975), cert. den., 423 U.S. 836 (1975); see also Boyer v. Commissioner of Internal Revenue, 69 T. Ct. 521, 535 (1977) finding as taxable income "compulsory contributions from an employee's salary into a government retirement fund in which the employee has a nonforfeitable right ...." (Emphasis added). [34] H.R. Conf. Rep. No. 606, 99th Cong., 2d Sess. 137 (1986). As to the Thrift Savings Plan moneys, the conferees stated, "The employee owns it, and it cannot be tampered with by any entity including Congress." See also Federal Retirement Thrift Investment Board Memorandum, to Thomas J. Trabucco, from General Counsel John J. O'Meara, "Section 304 of the Intelligence Authorization Act for Fiscal Year 1996," at 5-6, July 10, 1995. The Thrift Board memo appears to indicate that even the Government's contributions to the Thrift Savings Plan should be treated as a vested property interest of the employee. [35] Zucker v. United States, supra at 639: "To have a property interest in a benefit protected by procedural due process, a person must have a legitimate claim of entitlement to the benefit.... Although the retirees may have a protected property interest when they are entitled to immediate payment under preexisting law, i.e., the payment of an annuity upon retirement, their entitlement to any postretirement increases in that annuity stems from the independent [statutory] source that creates and defines their property interest in same ... Until a retiree becomes eligible to receive a particular COLA, his or her right to that adjustment is subject to any lawful changes made to the section ..." [36] The current provisions of H.R. 4975, 109th Congress (as of April 21, 2006), do not, however, require forfeiture of an employee's or Member's own contributions. See H.R. 4975, 109th Congress, Section 601(a), and current provisions of 5 U.S.C. §§ 8316, 8432(g)(1) and (5).

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[43] [44] [45] [46]

[47] [48]

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391 F.3d 1212, 1220 (Fed. Cir. 2004). 271 F.3d 1327 (Fed. Cir. 2001). 391 F.3d , supra at 1217. Bennis v. Michigan, 516 U.S. 442, 452 (1996). See Browning-Ferris Industries of Vermont, Inc. v Kelco Disposal Inc., 492 U.S. 257, 265 (1989). Austin v. United States, 113 S.Ct. 2801, 2806 (1993), citing Halper v. United States, 490 U.S. 435, at 448 (1989); see also specifically as to loss of pension annuities as "punitive" as opposed to regulatory, Hiss v. Hampton, 338 F.Supp. 1141, 1148-1153 (D.D.C. 1972). 113 S.Ct. at 2812. 113 S.Ct. at 2814-2815. 463 U.S. 277 (1983). It should be noted that federal courts have found, even with respect to sentencing cases, that "Solem v. Helm does not require a proportionality review of any sentence less than life imprisonment without the possibility of parole." United States v. Pryba, 900 F.2d 748, 757 (4th Cir. 1990), cert. den. 11 S.Ct. 305 (1990); United States v. Whitehead, 849 F.2d 849 860 (4th Cir. 1988, cert. den. 488 U.S. 983 (1988). But see Alexander v. United States, 113 S.Ct. 2766, 27752776 (1993), where the issue of applying a proportionality test under the Excessive Fines Clause was left open. Furthermore, subsequent cases have found that the "proportionality" test in Solem applies only to Cruel and Unusual Punishment Clause cases, and not to Excessive Fines Clause cases, and specifically that proportionality would not apply to excessive fines cases dealing with forfeiture. United States v. Chandler, 36 F.3d 358, 365 (4th Cir. 1994), cert. den. 115 S.Ct. 1792. 463 U.S. at 284-286. Forfeiture cases do not provide a neat analogy to monetary fines cases, however, since there are other dominant factors in justifying an in rem forfeiture, such as the connection of the property to the commission of the crime or to the proceeds of the illegal activity. 840 F. Supp. 71 (E.D. Mich. 1993). 840 F. Supp. at 74, quoting TX0 Productions Corp. v. Alliance Resources Corp., 509 U.S. 443, 452 (1993). Id. Id. at 74-75. In this case, the court found that fines of $255,000 based on 51 violations were excessive ($5,000 per violation), and that only 7 of the violations actually warranted the fines: "The Court therefore finds that any

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[53] [54]

[55] [56] [57]

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[58] [59]

[60]

[61]

Jack Maskell civil penalty above $35,000 is excessive and violates the Eighth Amendment of the United States Constitution." 902 F. Supp. 1011 (W.D. Mo. 1995). Id. at 1018. "This finding is based upon Plaintiff' 's inability to prove actual damages at trial, the government's poor investigative procedures, and its confusing regulatory and contractual purchasing arrangements which virtually encourage the type of conduct at issue here." 524 U.S. 321, 344 (J. Kennedy, dissenting): "For the first time in its history, the Court strikes down a fine as excessive under the Eighth Amendment." 524 U.S. at 334. 524 U.S. at 336-337. In this case respondent failed to report, as required by law, the transportation of more than $10,000 out of the United States, and the Government sought forfeiture of the entire $357,144 that respondent was transporting. The Supreme Court found the fine/penalty of $357,144 to be grossly disproportionate to the gravity of the offense. These funds were lawfully obtained, were to be lawfully used, and were not proceeds of or involved in any illegal activity. The respondent's maximum fine under the statute, absent the in personam forfeiture, would be $5,000. 524 U.S. at 337-338. See, Leiter. National Survey of State Laws, 81-93 (1993). Note Causey, Mike. The Washington Post, at B2, Wednesday, May 29, 1996: "FERS employees who invest from the beginning can expect to have million-dollar accounts at retirement." Note, for example, State cases including People v. Miller, 522 N.W. 2d 697 (Mich. 1994) (importance to legislature in punishing repeat offenders); Hindt v. Delaware, 421 A.2d 1325, 1333 (Del. 1980) (factoring in importance legislature places on environmental protection). See Federal Retirement Thrift Investment Board Memorandum of July 10, 1995, supra at 10: It appears that the fine imposed on a TSP participant by the proposed legislation bears no relationship to the nature or gravity of his or her offense. Rather the statute identifies a species of property entirely unrelated to the crime itself and requires the defendant to surrender all that he or she possesses. The value of the fine could range from several dollars to several hundred thousand dollars, with the sole measure of the fine being the value of contributions. On its face, this scheme would violate the Eighth Amendment because it expressly excludes a proportionality assessment. Support for this argument may also come from cases which upheld "sliding scale" or graduated fines of differing amounts when the court justified those differing fines as related to the degree or severity of the offense, such as fines requiring defendants to pay for portions of the cost of incarceration, which would increase in amount according to the number of years

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one is to be incarcerated (United States v. Price, 65 F.3d 903, 908-909 (11th Cir. 1995)); Commissioner v. Smith, 187 A.2d 267 (Pa. 1963) (graduated fine); Peissig v. Wisconsin Gas Co., 456 N.W.2d 348 (Wisc. 1990)(multiple or treble damages). However, it should be noted that the "fine" or loss imposed by the current forfeiture-ofpension provision of the "Hiss Act" is also based, necessarily (and will vary based) upon the time that a federal official has spent in the Government and the official's salary level, that is, those factors that determine the amount of the official's annuity and thus the amount of the loss, — as opposed to being based strictly on the nature or gravity of the offense. [62] Many of the excessive fines cases coming before the courts in recent years concern, as noted, "forfeitures" of property involved in some way with criminal conduct. These cases are not as helpful in gleaning an excessiveness test or formula, since in addition to measuring the severity of the offense in comparison with the "fine," these forfeiture cases, particularly those dealing with in rem forfeitures, also look to the connectedness of the property to the crime committed, nexus with the proceeds of the crime, look to remedial concerns such as removing the instruments of the crime from public commerce or to "make whole" the Government, and may also look to other factors, such as the guilt or innocence of the owner of the forfeited property and their cooperation with law enforcement authorities. Note, Scalia, J., concurrence in Austin, supra; see, e.g., United States v. One Parcel of Real Property Located at 461 Shelby County Road 361, 857 F. Supp. 935 (N.D. Ala. 1994).

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INDEX # 14th Amendment, 64, 85

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A abusive, 99 academic, 43, 59, 78 access, viii, 2, 17, 22 ad hoc, 65, 66, 74 Adams, 8, 66, 98, 106 adjudication, 46, 82 adjustment, 107 administration, 13 administrative, x, 43, 54, 62, 69, 79 age, 4, 39, 55, 73 agent, 45, 81, 91, 93 aid, 20, 64, 85 Alabama, 14 Alexander Hamilton, 27, 48, 51, 66, 87 alternative, 68 ambassadors, 59 amendments, 24, 93 annuities, ix, xi, xii, 38, 39, 44, 72, 73, 80, 89, 90, 91, 92, 93, 95, 96, 107 application, 92, 96, 99, 100 argument, 4, 50, 60, 86, 102, 103, 109 Arizona, 68 Arkansas, 20 Articles of Confederation, 43, 59, 66, 79

assaults, 16 assessment, 109 Attorney General, 50, 62, 68, 85, 93 authority, vii, viii, x, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 16, 19, 22, 26, 27, 29, 31, 34, 35, 40, 41, 42, 43, 46, 47, 49, 51, 54, 55, 56, 57, 58, 59, 60, 61, 62, 64, 66, 67, 68, 75, 76, 77, 78, 82, 83, 85, 86, 90, 94, 97, 98, 101 automobiles, 23

B bail, 99 Bajakajian, 101 behavior, 11, 15, 16, 22 benefits, 63, 92, 93, 97, 98, 106 Bennis v. Michigan, 107 binding, 10 Boston, 26, 64 breaches, 102 bribery, viii, 1, 10, 28, 30, 41, 45, 48, 50, 56, 59, 64, 65, 77, 78, 81, 83, 84, 86, 90, 93, 94, 104 bribery statute, 93, 94, 104

C calculus, 100 campaign funds, 23, 24 candidates, 67

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Index

capacity, 16, 17 case law, 60 Chief Justice, 95 citizenship, 4, 39, 55, 73 Civil War, viii, 1, 10, 27, 41, 56, 77 classes, 16 CNN, 105 Co, 16, 27, 43, 46, 58, 59, 62, 66, 78, 81, 95, 98, 100, 109 codes, 16 COLA, 107 commerce, 109 Committee on Privileges, 22, 68 Committee on Standards, xi, 13, 16, 17, 23, 29, 64, 65, 71, 75, 76, 77, 82, 83, 84, 85 communication, 21 compensation, 98, 104, 106 compliance, 83 composition, 58 concealment, 25 confidence, 22, 102 conflict, 6, 7, 28, 61 Congressional Record, 65, 68, 83, 84, 103, 105 Connecticut, 11, 22, 23 consent, 82 conspiracy, 8, 10, 20, 30, 45, 48, 56, 80, 84, 91, 93, 94 Constitution, vii, viii, ix, x, xi, 1, 2, 3, 4, 5, 6, 8, 9, 10, 15, 16, 26, 27, 28, 30, 33, 37, 38, 39, 40, 42, 43, 44, 45, 46, 49, 50, 51, 53, 54, 55, 56, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 71, 72, 73, 75, 78, 79, 80, 81, 82, 85, 86, 87, 95, 96, 98, 104, 108 control, 8, 44, 80, 106 conversion, 23, 25 conviction, ix, x, xi, xii, 7, 10, 25, 29, 30, 31, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 54, 56, 57, 64, 65, 72, 73, 75, 77, 79, 80, 81, 82, 83, 84, 90, 91, 92, 93, 94, 96, 97, 99, 102, 104 corruption, viii, ix, xi, 1, 10, 25, 30, 38, 44, 45, 47, 72, 80, 81 counsel, 33, 101 Court of Appeals, 97, 98

courts, 28, 44, 46, 61, 62, 80, 82, 97, 99, 101, 103, 107, 109 coverage, xii, 90, 91 credit, 97 crime, viii, ix, xi, 7, 10, 37, 38, 39, 41, 43, 44, 47, 64, 71, 72, 73, 77, 79, 80, 91, 95, 96, 100, 101, 102, 105, 108, 109 crimes, ix, xi, xii, 10, 38, 41, 72, 73, 77, 78, 89, 90, 91, 92, 93, 94, 95, 96, 97, 99, 101, 102, 104 CRS, 1, 28, 31, 37, 45, 49, 53, 71, 82, 84, 85, 89

D de novo, 101 death, vii, ix, 32, 42, 50, 53, 55, 60, 78, 85 decisions, x, 43, 44, 54, 59, 79, 80 defects, 59 defendants, 109 defense, xii, 33, 45, 81, 89, 90, 91 definition, 100, 103 defraud, 45, 81, 84, 94 democracy, 59 denial, 92, 97 Department of Justice, 40, 76 Department of State, 91 deprivation, 31, 98 desire, 5 destruction, 20, 104 deterrence, 102 dignity, 3, 7, 16, 22, 33 direct action, 50, 60, 85 disability, ix, xi, 25, 37, 38, 44, 50, 72, 73, 79, 86, 104 discipline, 2, 3, 5, 7, 10, 15, 19, 26, 27, 31, 40, 41, 42, 44, 46, 51, 56, 61, 75, 77, 80, 82, 86 disclosure, 24, 44, 80, 91 discretionary, 15, 16 disposition, 31, 47 distribution, 90 donors, 77 doors, 21 double jeopardy, 27 due process, 98, 100, 107 duties, viii, 1, 13, 15, 16, 48, 69

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Index

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E earnings, xii, 90, 92, 94, 96, 97, 99, 102, 105 election, xi, 3, 4, 7, 8, 9, 23, 27, 28, 35, 42, 48, 51, 56, 57, 61, 62, 63, 68, 71, 77, 79, 80, 87, 94 electoral process, x, 30, 48, 54, 66 embezzlement, 94 employees, xii, 44, 80, 89, 90, 91, 92, 93, 96, 97, 104, 106, 108 employment, 45, 81, 92, 102, 104, 106 England, 4, 30 English law, 100 environmental protection, 108 erosion, 102 espionage, 44, 80, 91 ethics, viii, 2, 16, 19, 23, 26, 33, 77, 93 Excessive Fines Clause, 99, 100, 101, 103, 107 exclusion, 4, 6, 27, 29, 55 exercise, x, 6, 9, 16, 42, 49, 50, 54, 56, 57, 60, 74, 85, 86, 90, 98 expulsion, vii, viii, ix, x, xi, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 15, 18, 20, 21, 23, 25, 26, 29, 30, 31, 33, 35, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 51, 53, 54, 55, 56, 57, 59, 64, 65, 66, 72, 73, 75, 76, 77, 78, 79, 83, 84, 86 eyes, 15

F failure, 21, 24, 25, 55 faith, 25 False Claims Act, 100 family, 43, 79 FBI, 77 February, 20, 22, 82 Federal Convention, 27, 49, 55, 66, 85 federal courts, 97, 107 federal government, 43, 44, 79, 80, 92, 97, 104 federal law, xii, 24, 42, 45, 59, 81, 89, 90, 91, 94, 102 feelings, 12 fees, 25

felon, 39, 44, 51, 73, 79, 80, 87 felony, viii, ix, xi, xii, 10, 37, 38, 39, 42, 43, 44, 46, 51, 71, 72, 73, 74, 75, 77, 78, 79, 80, 87, 92, 94, 96, 102, 104 fidelity, 21 Fifth Amendment, xii, 90, 98 fines, 92, 99, 100, 102, 103, 107, 108, 109 fitness, 4, 9, 28, 42, 46, 57, 82 forfeiture, viii, ix, xi, xii, 2, 11, 38, 39, 59, 72, 73, 89, 90, 91, 92, 93, 94, 96, 97, 98, 99, 100, 101, 107, 108, 109 Fourteenth Amendment, ix, xi, 38, 44, 45, 72, 73, 79, 81, 85 fraud, 45, 56, 81, 94 freedom, 8 funds, 23, 25, 35, 108

G Georgia, 14, 24 Germany, 23 gifts, viii, 2, 25, 77 good behavior, 104 good faith, 25 Gore, 101 government, vii, 1, 5, 6, 9, 20, 25, 26, 40, 43, 44, 49, 50, 57, 59, 60, 61, 76, 79, 80, 86, 92, 94, 96, 98, 102, 104, 106 grants, 60 gravity, 101, 108, 109 groups, 25, 63 guidance, 69 guidelines, 41, 77 guilt, xi, 40, 71, 72, 75, 77, 98, 109 guilty, 11, 15, 16, 22, 35, 48, 94, 95

H harassment, 45, 81 Harvard, 49, 67, 85 hearing, 10 Honest Leadership and Open Government Act, 45, 51, 81, 87 House, v, vii, ix, x, xi, xii, 1, 2, 3, 4, 6, 7, 8, 9, 10, 15, 16, 17, 18, 19, 25, 26, 27, 28, 29, 30, 31, 34, 38, 40, 41, 42, 43, 45, 46, 47,

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48, 50, 51, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 67, 71, 72, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 93, 94, 103, 105

jurisdiction, 16, 29, 47, 48, 50, 62, 66, 77, 85 jury, 83 justice, 8, 45, 56, 64, 78, 81, 84 justification, 3, 14

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I Idaho, 32, 62 immigration, 77 impeachment, 28, 56, 57, 64, 104 imprisonment, xi, 18, 31, 40, 72, 73, 74, 75, 91, 92, 95, 99, 100, 107 in personam, 99, 101, 103, 108 inactive, 104 incarceration, 43, 79, 91, 109 inclusion, 58 income, 17, 44, 80, 84, 91, 92, 97, 105, 106 income tax, 84, 97 Indiana, 20 Indians, 20 indication, 9, 96, 99 injunction, 21, 62 injuries, 7 innocence, 109 institutions, 44, 80, 102 instruction, 75 instruments, 109 insults, 16 integrity, 3, 7, 16, 26, 55 Intelligence Authorization Act, 106 interpretation, x, 13, 14, 24, 54 intimidation, 45, 81 investigative, xi, 72, 76, 108 investment, 105

J January, 21, 32, 53, 74, 89, 105 Jefferson, 20 judge, 27, 28, 61, 104 judges, 104 judgment, 5, 8, 9, 24, 26, 42, 48, 57 Judiciary, 8, 15, 20, 21, 22, 29, 32, 48, 49, 56, 66 Judiciary Committee, 8, 15, 20, 21, 22, 29, 32, 48, 49, 56, 66

K Kentucky, 20, 30, 65, 84 King, 29

L LAB, 105 language, viii, 2, 11, 15, 16, 33, 46, 56, 61, 62, 75, 100 law, viii, ix, xi, xii, 2, 9, 16, 22, 23, 29, 32, 37, 38, 40, 41, 42, 43, 45, 47, 50, 51, 59, 60, 62, 68, 69, 71, 72, 76, 77, 78, 79, 81, 86, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 100, 102, 105, 107, 108, 109 law enforcement, 109 laws, xii, 24, 45, 61, 62, 68, 81, 84, 90, 95 lead, 39, 73, 102 leadership, ix, xi, 37, 38, 39, 46, 71, 72, 74 legislation, viii, xii, 2, 17, 22, 25, 59, 89, 90, 92, 93, 94, 95, 96, 97, 98, 102, 109 legislative, ix, xi, xii, 2, 3, 8, 17, 18, 23, 26, 31, 38, 39, 56, 57, 58, 72, 73, 83, 90, 93, 95, 97, 98, 101, 103 legislative proposals, xii, 90, 93, 95 liberty, 98 lifetime, 104 limitation, x, 5, 8, 9, 15, 54, 98 limitations, 9, 49, 57, 95, 99 lobbying, 93 London, 27 long-term, 63 Louisiana, 20

M Madison, 27, 30 Maine, 28 manufacturer, 20 Maryland, 46, 58, 82 Massachusetts, 21, 32 measures, 105

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Index Member-elect, 4, 27, 28, 55, 77 membership, 3, 4, 7, 27, 41, 55, 77 men, 8, 49, 51, 57, 87, 96 Minnesota, 24 minority, 4, 29, 63, 74 Mississippi, 13, 14 Missouri, 21, 30, 65, 84 money, 77, 94, 97, 98, 102 morals, viii, 2, 16, 23, 24, 26, 33 motion, 22 motivation, 95 motives, 23 movement, 57, 63

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N national, ix, xi, xii, 38, 44, 45, 50, 59, 60, 61, 63, 72, 80, 81, 86, 89, 90, 91, 92, 97 national security, ix, xi, xii, 38, 44, 45, 72, 80, 81, 89, 90, 91, 92, 97 Nebraska, 66 neglect, 13, 24 New Jersey, 30 New York, 58, 67, 69 New York Times, 69 Nixon, 28 normal, vii, ix, x, 42, 53, 54, 55, 78 norms, viii, 2, 16, 24, 26, 34 North Carolina, 20

O obligation, 98 obligations, 34 obstruction, 23, 45, 56, 64, 78, 81, 84 offenders, 108 Office of Senate Legal Counsel, 28 Ohio, 8, 22, 32, 34, 66, 77 Oregon, 50, 62, 68, 85 organizations, 81 oversight, 63

P Parliament, 27 parole, 99, 100, 107 payroll, 22

115

peers, 25 penalties, 17, 97, 99, 105 penalty, xii, 89, 92, 95, 96, 101, 102, 104, 108 Pennsylvania, 77 pension, ix, xi, xii, 38, 39, 45, 72, 73, 81, 89, 90, 91, 92, 93, 94, 95, 96, 97, 107 pension system, 92 pensions, xii, 44, 80, 89, 91, 94, 96 perception, 12, 26 performance, 26, 47 perjury, 45, 81, 91, 93, 94 permit, 7, 94 personal, 9, 14, 23, 24, 25, 47, 64 personal benefit, 24 Philadelphia, 66 political parties, 39, 74, 82 poor, 108 power, x, 5, 6, 7, 8, 9, 15, 16, 24, 41, 42, 43, 46, 48, 50, 54, 55, 56, 57, 58, 60, 61, 66, 76, 78, 83, 86, 90, 98 powers, 2, 50, 57, 60, 61, 67, 74, 85, 86 prejudice, 46 presumption of innocence, 40, 75 private, 3, 19, 20, 23, 25, 40, 76, 98 private property, 98 probe, 30, 31, 48 profit, 50, 86 program, xii, 90 property, iv, xii, 90, 92, 94, 96, 97, 98, 99, 102, 104, 106, 107, 108, 109 proportionality, 100, 101, 102, 103, 107, 109 protection, 91, 108 public, vii, viii, ix, xi, 2, 3, 8, 9, 16, 19, 20, 24, 25, 26, 33, 35, 38, 42, 44, 46, 49, 53, 55, 57, 63, 68, 72, 78, 80, 92, 94, 98, 102, 104, 105, 109 public employment, 102 public funds, 35 public interest, 102 public pension, 105 punishment, viii, ix, xi, 2, 5, 11, 18, 33, 38, 50, 72, 73, 86, 95, 96, 99, 100, 101, 103, 105 punitive, 34, 96, 100, 101, 107

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Index

Q qualifications, 3, 4, 6, 29, 39, 43, 44, 46, 50, 51, 55, 58, 60, 61, 62, 64, 67, 73, 79, 80, 81, 82, 86, 87, 104 questioning, 7 quorum, 27

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R racketeering, 84 range, 93, 109 reading, 7, 21 reasoning, 100 recall, x, 42, 43, 49, 50, 54, 55, 57, 58, 59, 61, 62, 63, 66, 68, 69, 78, 79, 85 recalling, 62 recognition, 7 reelection, ix, 7, 9, 25, 35, 37, 48, 51, 66 regular, 63, 104 regulation, 47, 96, 102, 106 regulations, 34, 106 rejection, 23 relationship, 22, 23, 34, 101, 102, 109 relevance, 4, 11 repo, 8, 49 Republican, ix, 37, 38, 39, 46, 74, 82 reputation, 3, 16 research, 18 resolution, viii, x, 2, 3, 7, 11, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 31, 32, 33, 34, 35, 41, 42, 47, 53, 55, 65, 68, 77, 78, 82, 84 responsibilities, 69 restitution, 2, 24, 25, 92 retirees, 107 retirement, ix, xi, xii, 38, 39, 44, 45, 72, 73, 80, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 102, 104, 106, 107, 108 returns, 84 revolving door, 45, 81 RICO, 45, 81 risk, 75 Rules and Administration Committee, 23

S sabotage, 44, 80, 91 safety, 16 salary, 43, 77, 79, 104, 106, 109 savings, xii, 90, 94, 96, 97, 99, 102 secret, viii, 2, 17, 22 Secretary of State, 62 secrets, 45, 81, 91 security, ix, xi, xii, 38, 44, 45, 72, 80, 81, 89, 90, 91, 92, 97 Self, 28, 48, 51, 66, 87 self-discipline, 56 semantics, 12, 14 Senate, v, vii, viii, ix, x, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 55, 56, 58, 60, 64, 65, 67, 68, 78, 83, 85, 87, 93, 94, 104, 105 Senate approval, 33 sentences, 100 sentencing, 75, 99, 107 separation, 28 separation of powers, 28 services, iv, vii, ix, 42, 45, 53, 54, 78, 81, 94 severity, 17, 100, 101, 103, 109 sign, 68 signs, 68 Social Security, 104 socialist, 64, 85 South Carolina, 11, 18, 20, 22 sovereignty, 60 Speaker of the House, 19 species, 109 speech, 21 sponsor, 76 spouse, 93 standards, 5, 9, 16, 24, 34, 49, 57, 61, 82, 99, 101, 103 state laws, 61, 68 state legislatures, 9, 44, 58, 59, 66, 80 state office, 61

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Index statutes, viii, xi, 16, 24, 34, 37, 50, 61, 62, 68, 71, 86, 94, 106 statutory, ix, x, xi, 9, 25, 37, 38, 54, 56, 71, 72, 95, 99, 107 strikes, 12, 108 suppression, 20 Supreme Court, vii, x, 1, 4, 5, 6, 7, 28, 43, 50, 54, 55, 59, 60, 61, 69, 79, 86, 95, 98, 99, 101, 103, 108

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

T tariff, 22 taxes, 92 Tennessee, 20, 30, 48, 65 tenure, 40, 76 term plans, 63 testimony, 103 Texas, 18, 20 theft, 94 theory, 44, 79, 91 threat, 63 thresholds, 104 time, x, xi, 4, 5, 6, 8, 9, 10, 12, 16, 17, 24, 30, 41, 49, 54, 56, 57, 58, 63, 66, 72, 76, 92, 96, 97, 101, 102, 108, 109 timing, x, 4, 5, 40, 54, 56, 75 trade, 22 traditional authority, 16 transfer, 97 transportation, 108 travel, 25 Travel Act violations, 64 treason, 45, 80, 91 trial, 46, 56, 83, 98, 108 trust, viii, 2, 5, 8, 16, 24, 26, 33, 34, 49, 50, 86, 91, 94, 97, 102, 104

U United States, vii, ix, x, xii, 1, 2, 5, 9, 10, 17, 20, 24, 25, 26, 27, 28, 30, 31, 33, 35, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 53, 54, 55, 56, 58, 59, 60, 61, 62, 64, 65, 66, 67, 68, 69, 73, 75, 77, 78, 79, 80, 81, 84, 85, 86, 89, 90, 91, 94, 95, 97, 98, 99, 100, 101, 103, 104, 105, 106, 107, 108, 109 Utah, 6, 12, 32

V vacancies, 55 validity, 69 variable, 103 Vermont, 107 veterans, 96 Vice President, x, 42, 54, 58, 78 voters, 3, 4, 9, 50, 57, 62, 85 voting, vii, ix, x, 1, 4, 25, 27, 38, 40, 41, 44, 46, 51, 53, 55, 75, 76, 77, 80, 87

W warrants, 3 Washington Post, 69, 108 wire fraud, 45, 81, 94 Wisconsin, 11, 12, 23, 62, 64, 68, 85, 109 wisdom, 7 withdrawal, 55 witnesses, 45, 81 women, 9, 47, 64 word of mouth, 18 writing, 20, 99 wrongdoing, 13

Congressional Misconduct, Nova Science Publishers, Incorporated, 2009. ProQuest Ebook Central,