Congressional Self-Discipline: The Power to Expel, to Exclude and to Punish

Fordham Law Review, Dec 1972

By Gerald T. McLaughlin, Published on 01/01/72

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Congressional Self-Discipline: The Power to Expel, to Exclude and to Punish

Congressional Self-Discipline: The Power to Expel, to Exclude and to Punish Gerald T. McLaughlin 0 1 0 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact 1 Gerald T. McLaughlin, Congressional Self-Discipline: Th e Power to Expel, to Exclude and to Punish , 41 Fordham L. Rev. 43 (1972). Available at: - Article 2 TO THE POWER PUNISH GERALD T. McLAUGHLIN* R ECENT events have again focused attention on Congress' power to discipline its members for personal misconduct. On April 19, 1972, the House Committee on Standards of Official Conduct1 recommended that Texas Representative John Dowdy be stripped of his right to vote on the floor of the House or in committee as a result of his conviction for bribery and perjury.2 On that same day, two Senators argued before the Supreme Court that the Constitution forbids the executive branch from investigating the official conduct of a member of Congress, and delegates all responsibility for punishing members' wrongdoing to each house of Congress.3 Finally, on June 29, 1972, a Supreme Court majority in United States v. Brewster,' while holding that a former Senator was not immune to criminal prosecution for accepting a bribe while in office, commented that Congress did not have specifically articulated standards for the discipline of its members, ' and that in a disciplinary proceeding a member of Congress "is at the mercy of an almost unbridled discretion of the charging body .... "I The Constitution provides Congress with three specific powers to discipline its own members: the power to expel, the power to exclude and the power to punish.' Congress needs these powers primarily for two reasons. First, both the Senate and the House of Representatives must maintain their own institutional integrity and the "proper functioning of the legislative process."' Second, each house possesses certain privileges which guarantee Congress' existence as a separate but equal branch of government. Not the least of these is the privilege which protects a Senator or * Associate Professor of Law, Fordham University. Professor McLaughlin received his BA. from Fordham University, and his LL.B from New York University, where he was Managing Editor of the Law Review. 1. See note 22 infra. 2. Wall St. '.A,pril 20, 1972, at 1, col. 3. When a member of Congress has been indicted for a felony, the House of Representatives and the Senate usually do not take action until after the conclusion of judicial proceedings. R. Getz, Congressional Ethics 90 (1966) (hereinafter cited as Getz]. 3. N.Y. Times, April 20, 1972, at 8, col. 1. 4. 408 U.S. 501 (1972). 5. Id. at 519. See In re Chapman, 166 U.S. 661, 669-70 (1897). 6. 408 U.S. at 519. 7. U.S. Const. art. I, § 5. The power to exclude is inferred from the power of each house to judge the qualifications of its members. 8. Special Committee on Congressional Ethics, Association of the Bar of the City of New York, Congress and the Public Trust 202 (1970) [hereinafter cited as Congress and the Public Trust]. Representative from being questioned elsewhere about his acts or speeches in Congress.' If a member of Congress is to enjoy such a broad privilege, Congress requires its own in-house disciplinary sanctions to guard against the abuse of that privilege.' 0 In effect then, Congress' power of selfdiscipline is necessitated both by its internal workings and by its relationship with the other branches of the federal government. At the same time, however, the power of Congress to expel, to exclude or to punish a member is itself limited by the people's right to elect whomever they wish to represent them." Congress' power to discipline its members and the people's right to choose their representatives have collided in the past' and will undoubtedly do so again in the future. This article explores one half of that critical tension: Congress' powers of self-discipline. To that end, the article treats each of Congress' disciplinary powers separately to demonstrate that there are definite procedural and substantive rules which limit the exercise of these powers-rules which do approximate those "specifically articulated standards" whose existence the Supreme Court majority in Brewster denied. 3 9. U.S. Const. art. I, § 6. The privilege protects members of Congress from inquiry Into legislative acts or the motivation behind legislative acts. The privilege does not cover all conduct relating to the legislative process. United States v. Brewster, 408 U.S. 501, 516 (1972). For other recent discussions of the congressional privilege, see Gravel v. United States, 408 U.S. 606 (1972); Gravel, Congressional Privilege: The Case of Sen. Gravel, 167 N.Y.L.J., March 31, 1972, at 1, col. 1. 10. "If Congress did not police it (...truncated)


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Gerald T. McLaughlin. Congressional Self-Discipline: The Power to Expel, to Exclude and to Punish, Fordham Law Review, 1972, Volume 41, Issue 1,