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
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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:
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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)