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.

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

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

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

Other House examples, however, suggest that the House has viewed itself, at times, as lacking the power to expel a Member for misconduct occurring prior to the individual’s last election.15 The House Rules Manual, for example, reflects different interpretations: while previously providing that “both Houses have distrusted their power to punish in such cases,” it no longer makes such a statement.16

, at 28–9 (2017). Similarly, a House select committee investigating the possible expulsion of John W. Langley stated in 1925 that “with practical uniformity the precedents in such cases are to the effect that the House will not expel a Member for reprehensible action prior to his election as a Member . . . . ” 17 A 1972 House report similarly noted that “[p]recedents, without known exception, hold that the House will not act in any way against a Member for any actions of which his electorate had full knowledge at the time of his election. The committee feels that these precedents are proper and should in no way be altered.” 18

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

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

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

Footnotes

1

In addition to the examples discussed below, Hinds lists a number of precedents relating to the House’s power to expel a Member for prior conduct. 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1283–89 (1907). For example, in 1799, the House declined to expel Matthew Lyon for an offense which had been committed while he was a Member of the House but before his last election. Id. § 1284. In 1858, the House laid on the table a committee report concluding that it was “inexpedient” for the House to take action against O.B. Matteson for known misconduct prior to an election. Id. § 1285. In 1876, the House declined to take action against Members William S. King and John G. Schumaker for violations of law committed in a preceding Congress. Id. § 1283.

2

H.R. Rep. No. 69–30, at 1–2 (1925).

3

The House and Senate power to discipline their members generally includes the authority to censure, reprimand, fine, or expel. See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 2010 (2007).

4

Compare H.R. Rep. No. 42–77 (1872), with H.R. Rep. No. 42–81 (1872). The Credit Mobilier scandal involved the sale of shares of stock to Members at below market rates. See Chafetz, supra note 3, at 221.

5

H.R. Rep. No. 63–570, at 3 (1914).

6

H.R. Rep. No. 42–77, at XIX (1872).

7

Id. at XIV.

8

Id. at XVII.

9

Id. at XVI–XVII.

10

H.R. Rep. No. 42-81, at 7–13 (1873).

11

Id. at 13.

12

Id. at 8.

13

H.R. Rep. No. 63-570, at 4–5 (1914).

14

Id. at 4 ( “The House ignored the recommendations of the Judiciary Committee and punished two of its Members by censure and declined to express doubt as to its power and jurisdiction by refusing to adopt the preamble.” ).

15

See, e.g., H.R. Rep. No. 56-85, at 4 (1900) ( “Both houses have many times refused to expel where . . . [the misconduct] was committed prior to his election.” ); H.R. Rep. No. 94–1477, at 2 (1976) (recommending that a Member not be expelled because a prior conviction did “not relate to his official conduct while a Member of Congress.” ).

16

Compare Rules of the House of Representatives, H.R. Doc. No. 96-398, at 27 (1981), with Rules of the House of Representatives, H.R. Doc. No.

114-192

, at 28–9 (2017).

17

H.R. Rep. No. 69-30, at 1–2 (1925).

18

H.R. Rep. No. 92-1039, at 4 (1972).

19

Powell, 395 U.S. at 508–10.

20

Id. at 510.

21

Id. at 507, n. 27.

22

H.R. Rep. No. 96–351, at 3–5 (1979).

23

Id. at 3.

24

Id. at 5.

25

Id.

26

H.R. Rep. No. 97–110, at 16 (1981).

27

Id. at 157.

28

Id. at 145. Lederer resigned before the House took action on the expulsion recommendation.