Incompatible Offices

This second part of the second clause elicited little discussion at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the prevention of the corruption of the separation of powers.479 Congress has at various times confronted the issue in regard to seating or expelling persons who have or obtain office in another branch. Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary commissions who receive no compensation as members are not officers within the constitutional inhibition.480 Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress.481

One of the more recurrent problems which Congress has had with this clause is the compatibility of congressional office with service as an officer of some military organization—militia, reserves, and the like.482 Members have been unseated for accepting appointment to military office during their terms of congressional office,483 but there are apparently no instances in which a Member-elect has been excluded for this reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigable matter.484

Footnotes

479
THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 866–869 (1833). [Back to text]
480
1 HINDS ’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 493 (1907); 6 CANNONS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 63–64 (1936). [Back to text]
481
Hinds’, supra §§ 496–499. [Back to text]
482
Cf. RIGHT OF A REPRESENTATIVE IN CONGRESS TO HOLD COMMISSION IN NATIONAL GUARD, H. REP. NO. 885, 64th Cong., 1st sess. (1916). [Back to text]
483
HINDS ’, supra §§ 486–492, 494; CANNONS, supra §§ 60–62. [Back to text]
484
An effort to sustain standing was rebuffed in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). [Back to text]