How do the House and Senate punish its Members today?
“Each House may…punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member,” states Article I, section 5, of the U.S. Constitution. Both constitutionally and morally, Members have a serious duty to punish those who are guilty of unethical behavior. If a Member is guilty, the House and Senate, plus the party organizations within Congress, have a number of options to discipline them for whatever infractions they may have committed.
Each Chamber has its own committee to investigate alleged misconduct by Members of Congress, their staff and officers. Unlike other committees, the House Committee on Ethics and the Senate Select Committee on Ethics are evenly split between Republicans and Democrats to protect the process from partisan mischief. If the committees recommend some kind of action against a Member or staffer, one or more of that person’s party members have agreed to it. Each committee may issue admonitions, but more significant disciplinary actions, like expulsion or censure, are reserved to the full House and Senate. If an Ethics Committee thinks a punishment is warranted after finishing its investigation, it may report a resolution specifying one. Then the Chamber may debate and vote on the resolution. Per the Constitution, each Chamber only has jurisdiction over its own Members, so the House will never vote on punishing a Senator and vice versa.
The severest option Congress has at its disposal is expulsion. As the Constitution clearly states, either Chamber may vote to remove a Member from office. A two-thirds supermajority is required to remove the Member.
Originally, some Members of Congress thought that they could impeach their colleagues to remove them from office. In fact, the very first impeachment was aimed at Senator William Blount of Tennessee, who in 1797 was accused of conspiring with Great Britain to attack the Spanish and seize Florida. The House voted to impeach, and the day after the Senate received official notice of the impeachment, it voted to expel Blount by a vote of 25-1. Though the Senate had already expelled Blount and though he had returned to Tennessee, it began an impeachment trial in December. Blount’s lawyers argued that he was not liable to impeachment, and by a vote of 11-14, the Senate rejected a resolution stating that he was an impeachable official. Since then, the Congress has decided to use its powers under Article I, Section 5 to expel wayward Members of the House or Senate, rather than use impeachment.
Expulsions have been extremely rare. Only 5 Representatives and 15 Senators have ever been expelled. Three of these Representatives and fourteen of these Senators were removed for supporting the Confederacy during the Civil War. (The Senate later overturned the expulsion of 1 of those 14 Senators.) The last time a Member of either Chamber was expelled was in 2002 after having been convicted of several crimes, including bribery.
Both Chambers have imposed penalties less severe than expulsion. In today’s practice in the House, censure is below expulsion in terms of gravity. The House imposes this penalty by debating and then adopting a resolution of censure. Unlike expulsion, a simple majority suffices to pass a censure resolution. Normally, when the House votes to censure, the offending Member is summoned to the Well of the House, and the Speaker reads the resolution and might make a statement disapproving of the Member’s actions. This might seem like a light punishment, but the House does not censure often. According to the Congressional Research Service, as of 2016, only 23 Representatives had been censured. Plus, some long-ago censures were for behaviors that today do not seem particularly egregious by today’s standards. For instance, in the 1880s, Members were censured for the seemingly milder infraction of using “unparliamentary language,” i.e., making statements in debate that violate House rules. By contrast, in 2010, the last time a Member was censured, the Member had violated ethics rules relating to campaigns and issues with financial disclosure. Beneath censure is a reprimand. As with censure, the House votes on a reprimand resolution. Unlike censure, the offending Member is not summoned to the Well for a rebuke in person. Simply adopting the resolution suffices for a reprimand. As of 2016, ten Members had been reprimanded. Some of the grounds for reprimand have included proxy voting, the Member requiring staff to work on her campaign, making false statements on financial disclosure documents, and others. In addition to expulsion, censure and reprimand, the House has fined Members of Congress for various infractions. For instance, in the 2010 censure case, the House required the Member to reimburse the Treasury for unpaid taxes and provide a receipt to the Ethics Committee.
The Senate’s disciplinary practices differ somewhat from the House’s. Aside from expulsion, like the House, the Senate may adopt less severe resolutions by a simple majority vote. However, the terminology the two Chambers use is a little different. Today, the House distinguishes between “censuring” and “reprimanding” a Member. That’s not quite the case with the Senate. According to one expert from the Congressional Research Service, the Senate has used different kinds of wording in their resolutions, and 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.” Other words used to censure Senators have included “condemn” and “denounce.” Eight Senators have been censured. Their infractions have included fighting on the Floor of the Senate, financial disclosure violations, misuse of funds, and others.
And as a bit of legislative trivia, Congress does have another option for discipline: imprisonment. In Kilbourn v. Thompson, the Supreme Court has recognized the right of Congress to imprison its Members. “As we have already said, the Constitution expressly empowers each House to punish its own members for disorderly behavior. We see no reason to doubt that this punishment may, in a proper case, be imprisonment,” Justice Samuel Miller wrote in the Court’s decision. According to the Congressional Research Service, however, this has never been done, and it is not likely to happen any time soon either. If it did happen, the Member would probably sue for wrongful imprisonment. It would be interesting to see whether the Supreme Court today upheld Justice Miller’s opinion that Congress could imprison one of its own.
Congress’ disciplinary power is virtually unlimited. Does that mean the House and Senate may punish a person for misconduct prior to his or her election?
The Constitution states that each Chamber “shall be the Judge of the Elections, Returns and Qualifications of its own Members” (Article I, section 5). This has been interpreted to mean that Congress, by a simple majority vote, may prevent a Member-elect from taking his or her seat. However, this clause may not be used to punish a Member. In 1967, the House refused to seat a Member because an investigatory committee had found he and his staff had committed financial misconduct in the previous Congress. The Member filed a lawsuit that eventually went to the Supreme Court. In this case, Powell v. McCormack, the Court found that the House could only exclude a Member if he did not meet the requirements for office listed in the Constitution (i.e., in this case, a Representative must be at least 25 years old, a citizen for 7 years, and live in the state he or she represents). In other words, having acted unethically in a previous Congress was not grounds for excluding a Member. In its decision, the Court noted that letting voters choose their representatives was central to American democracy. “As Madison pointed out at the [Constitutional] Convention, this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself,” wrote Chief Justice Earl Warren for the 7-1 majority.
Although the House and Senate may not exclude a Member for unethical behavior prior to service, some have suggested they could expel a Member once in office. House Practice, a guide written by the Chamber’s Parliamentarians, notes that the “discretionary power of the House to expel one of its Members has been said to be unlimited.” At the same time, the House has never expelled anyone for acts crimes committed before their election to Congress. Similarly, a Senate Historical Office study of disciplinary issues notes that the Senate typically has not investigated accusations of wrongdoing committed prior to service. Congress’ practice of not disciplining Members for actions prior to service might seem strange, but the case of Representative Robert L.F. Sikes (a Democrat from Florida) in 1976 illuminates why they might be hesitant to do so. In 1976, the House reprimanded Representative Sikes after he was accused of several ethical infractions. However, the Ethics Committee recommended against disciplining him for a conflict-of-interest violation that had occurred 15 years previously and which, according to the Committee, “at least to some extent appear to have been known to Representative Sikes’ constituency which…continually reelected him to Congress.” (This violation occurred while he was in Congress, but the principle of allowing constituents to choose their Member would still apply.) Also, in 1976, the Ethics Committee recommended against a resolution to expel Representative Andrew Hinshaw, who had been convicted during that Congress of bribery while he had served as a county assessor in California. The Committee’s report did not directly address Representative Hinshaw’s argument that Members could be expelled only for acts committed while serving in Congress, although it did note that the conviction did “not relate to his official conduct while a Member of Congress.” Rather, it recommended against the expulsion resolution because Representative Hinshaw’s appeals were ongoing, and precedent is for the House to defer judgment until legal proceedings have concluded. And when Representative Charles Wiggins, who introduced the resolution, called it up for debate, the House voted immediately to set it aside (see Congressional Record, October 1, 1976, page 35111). Precedent weighs heavily against expelling a Member for actions committee prior to service in Congress, so the House or Senate will probably only ever do so for a crime more serious or disturbing than those described in the cases above.
If the House and Senate do not formally discipline a Member for wrongdoing prior to service, there are always more informal ways to express disapproval for their actions. For instance, Member could be denied seats on committees, which would limit their ability to influence legislation. In 2018, House Republicans stripped two of their own of committee assignments after they were indicted for federal crimes. Additionally, for the 116th Congress, the party adopted a rule requiring its Members to resign from committee and leadership spots if they are indicted. Or a party could vote to exclude them from their Conference or Caucus. Less visible than expelling a Member from a party would be simply refusing to assist them in advancing their legislative goals. Additionally, although the parties’ campaign committees are outside Congress, they could deny funding for Members seeking reelection. Turning a Member into a persona non grata at the Capitol is easy.
Naturally, Members of Congress never want to judge their own colleagues. However, that should not stop the House and Senate from acting quickly to ensure Members adhere to proper standards of behavior. The public already regards Congress suspiciously. Congress should not further give the public cause for derision by failing to discipline their own.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.