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

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.

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

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

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

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

, at 7–8 (1995). Much of the Senator’s conduct, however, was not uncovered until after his 1992 reelection.16

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

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

This lack of precedent may be due to the fact that Senators face elections less frequently (thereby reducing the possibility of misconduct occurring prior to an intervening election) and, prior to adoption of the Seventeenth Amendment, were not directly elected by the people. U.S. Const. amend. XVII. But see 41 Cong. Rec. 936 (Jan. 11, 1907) (statement of Sen. Hopkins) (asserting that the William N. Roach case “settled forever the question that the Senate will not undertake to revise the judgment of a State in determining the character of a man whom the State shall select as a United States Senator. The Senate will content itself with what occurs while such Senator is a member of this body.” ). back
One commentator has described the Senate’s power in this area as existing in a “twilight zone of the Senate’s jurisdiction.” George H. Haynes, The Senate of the United States: Its History and Practice 1892 (2d ed. 1960). For a Senate floor debate on the topic, see Cong. Globe, 37th Cong., 2d Sess. 968 (1862). In addition to the examples discussed below, Hinds lists two precedents relating to the Senate’s power to expel a Member for prior conduct. 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States §§ 1288–89 (1907) (hereinafter Hinds’ Precedents). In 1796, the Senate declined to pursue action against Humphrey Marshall for alleged criminal conduct that occurred prior to his election. 2 Hinds’ Precedents § 1288. In 1893, the Senate “discussed” its power to take action against William N. Roach who was “charged with a crime alleged to have been committed before his election,” but ultimately concluded to take no action. 2 Hinds’ Precedents § 1289. back
See 2 Hinds’ Precedents § 1264. back
Id. back
Id. back
United States Senate: Election, Expulsion, and Censure Cases 1793–1990, S. Doc. No. 103-33, at 334–35 (1995). back
S. Rep. No. 69-1715, at 12 (1927). back
Id. back
Id. back
S. Rep. No. 77-1010, at 9–13 (1942). back
United States Senate: Election, Expulsion, and Censure Cases 1793–1990, S. Doc. No. 103-33, at 368–70 (1995). back
Id. at 369. back
S. Rep. No. 77-1010, at 6 (1942). back
Id. at 13, n.4. (emphasis added). Senate votes to both exclude and expel Langer each failed. S. Doc. No. 103-33, at 370 (1995). back
S. Rep. No.
, at 7–8 (1995). back
Id. at 1–2. back
Id. at 39–40. back
Id. at 40. back
Id. back
Id. at n. 65. back
See Memorandum to Hon. Louis Stokes, Chairman, Committee on Standards of Official Conduct in H.R. Rep. No. 97-110, at 156 (1981). back
See, e.g., H.R. Rep. No. 42-81, at 7–13 (1872); S. Rep. No. 77-1010, at 6–13 (1942). back
Id. back