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

, at 28–9 (2017). See also H.R. Rep. No. 56–85, at 4 (1900) ( “Both Houses have many times refused to expel where the guilt of the Member was apparent; where the refusal to expel was put upon the ground that the House or Senate, as the case might be, had no right to expel for an act unrelated to the Member as such, or because it was committed prior to his election.” ) Yet, it appears that neither the House or the Senate has previously expelled a Member for conduct that solely occurred prior to the Member’s election to Congress. It can, however, be difficult to identify the specific date that misconduct giving rise to an expulsion occurred. For example, there is some ambiguity with regard to the timing of the conduct giving rise to the expulsion of Senator William Blount. However, a subsequent Senate report determined the offending conduct to have occurred after his first election, and also noted that “we have not been able to find a single case of expulsion where the crime or gross impropriety occurred outside of the time of membership.” S. Rep. No. 77-1010, at 6 (1942). Similarly, the report recommending the expulsion of Senator Waldo Johnson, which was ultimately approved by the Senate, made reference to that fact that “[p]revious to his election to the Senate Mr. Johnson was known in Missouri, as entertaining secession proclivities,” but it does not appear that that statement represented the sole grounds for the expulsion. S. Rep. No. 37-5 (1862). In the case of Senator Robert Packwood, a Senate Committee recommended expulsion on grounds that included prior misconduct, but the Senator resigned before the full Senate took action on those recommendations. See S. Rep. No. , at 9–11 (1995). Similarly, in the House, Raymond Lederer resigned after a committee recommended his expulsion for conduct that occurred prior to his last election. H.R. Rep. No. 97-110, at 17 (1981). Manifestations of this “distrust” through more restrictive interpretations of the expulsion power appear to be driven more by considerations of policy than of constitutional authority.5

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

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

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

Footnotes

1

Both bodies have, at times, distinguished between (1) conduct occurring during a Member’s previous term of office and (2) conduct (either private or public) that occurred prior to the Member’s first election to Congress. See e.g., S. Rep. No. 77-1010, at 6 (1942); H.R. Rep. No. 42-81, at 13 (1872). However, to the extent that the justification for nor expelling a Member for conduct that occurred prior to his last election rests on a reluctance to overturn the decision of the voters, this report treats the two groups of prior conduct similarly.

2

See Memorandum to Hon. Louis Stokes, Chairman, Committee on Standards of Official Conduct in H.R. Rep. No. 97-110, at 156 (1981); 2 Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States § 1283–89 (1907) (discussing precedents dealing with the question of expulsion for conduct “committed before election.” ).

3

See United States v. Nixon, 418 U.S. 683, 703 (1974); Comm. on Oversight & Gov’t Reform v. Holder, 979 F. Supp. 2d 1, 11 (D.D.C. 2013) (interpreting Nixon as holding that “each branch of government is empowered to interpret the Constitution in the first instance when defining and performing its own constitutional duties, and that one branch’s interpretation of its own powers is due deference from the others.” ). See also The Pocket Veto Case, 279 U.S. 655, 689 (1929); 1 Joseph Story, Commentaries on the Constitution of the United States § 838 (1833) (noting that questions regarding what conduct may be punished and what punishment may be applied “do not appear to have been settled by any authoritative adjudication of either house of [C]ongress” ); Timothy Zick, The Consent of the Governed: Recall of United States Senators, 103 Dick. L. Rev. 567, 596 (1999) ( “There continues to be much confusion concerning the proper boundaries of the power to expel.” ). But see NLRB v. Canning, 573 U.S. 513, 525 (2014) (noting that “this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute” ).

4

See Rules of the House of Representatives, H.R. Doc. No. 96-398, at 27 (1981). The House Manual no longer contains this statement. See Rules of the House of Representatives, H.R. Doc. No.

114-192

, at 28–9 (2017). See also H.R. Rep. No. 56–85, at 4 (1900) ( “Both Houses have many times refused to expel where the guilt of the Member was apparent; where the refusal to expel was put upon the ground that the House or Senate, as the case might be, had no right to expel for an act unrelated to the Member as such, or because it was committed prior to his election.” ) Yet, it appears that neither the House or the Senate has previously expelled a Member for conduct that solely occurred prior to the Member’s election to Congress. It can, however, be difficult to identify the specific date that misconduct giving rise to an expulsion occurred. For example, there is some ambiguity with regard to the timing of the conduct giving rise to the expulsion of Senator William Blount. However, a subsequent Senate report determined the offending conduct to have occurred after his first election, and also noted that “we have not been able to find a single case of expulsion where the crime or gross impropriety occurred outside of the time of membership.” S. Rep. No. 77-1010, at 6 (1942). Similarly, the report recommending the expulsion of Senator Waldo Johnson, which was ultimately approved by the Senate, made reference to that fact that “[p]revious to his election to the Senate Mr. Johnson was known in Missouri, as entertaining secession proclivities,” but it does not appear that that statement represented the sole grounds for the expulsion. S. Rep. No. 37-5 (1862). In the case of Senator Robert Packwood, a Senate Committee recommended expulsion on grounds that included prior misconduct, but the Senator resigned before the full Senate took action on those recommendations. See S. Rep. No.

104-137

, at 9–11 (1995). Similarly, in the House, Raymond Lederer resigned after a committee recommended his expulsion for conduct that occurred prior to his last election. H.R. Rep. No. 97-110, at 17 (1981).

5

See, e.g., H.R. Rep. No. 63-570, at 4–5 (1914) (noting the distinction between questions of “power” and questions of “policy” and concluding that “[a]s a matter of sound policy, this extraordinary prerogative of the House, in our judgment, should be exercised only in extreme cases . . . . ” ); H.R. Rep No. 96-351, at 4–5 (1981) (noting that “power is not to be confused with policy or discretion” ); S. Rep. No.

104-137

, at 7–8 (1995) (noting 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.” ).

6

See Memorandum to Hon. Louis Stokes, Chairman, Committee on Standards of Official Conduct in H.R. Rep. No. 97-110, at 156–57 (1981) (noting that with regard to expulsion for prior conduct “the issue ultimately is one of Congressional policy, and not Constitutional power” ). “Indeed, the House precedents against punishment for prior misconduct have sometimes been characterized as constituting a doctrine of ‘forgiveness,’ resting on the assumption that the electorate, knowing full well of the Member’s misconduct, has consciously chosen to forgive those acts and return him to the House.” Id. at 157.

7

Powell v. McCormack, 395 F.2d 577, 607 (D.C. Cir. 1968) (McGowan, J., concurring).

8

See 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 257 (statement of Alexander Hamilton) ( “After all, sir, we must submit to this idea, that the true principle of a republic is, that the people should choose whom they please to govern them. Representation is imperfect proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed.” ).

9

The Federalist No. 57 (James Madison).

10

1 Joseph Story, Commentaries on the Constitution of the United States § 837 (1833).

11

H.R. Rep. No. 63-570, at 4–5 (1914) (emphasis added).

12

Id. at 5 (emphasis added).