Powell subsequently filed suit claiming that he had been unconstitutionally excluded from Congress. His case eventually went all the way to the Supreme Court, which sided with Powell. In judging the qualifications of its Members, the court said, Congress is limited to the standing qualifications prescribed in the Constitution. Because Powell was duly elected by the voters ... and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.
This limitation on Congressional power was not unintended by the framers of the Constitution. In fact, the framers explicitly rejected proposals to allow Congress discretion to create its own qualifications for its Members. James Madison argued that such discretion would be an improper and dangerous power and that if Congress could regulate the qualifications of its Members, it could by degrees subvert the Constitution.
All of this means that if Traficant were elected, Congress would have no choice but to seat him. However, this does not end the inquiry. There remains the question of whether, if Congress were to seat Traficant, it could then expel him. After all, while the Constitution may prohibit Congress from denying a seat to an eligible and duly elected candidate, it also grants the House the authority to punish its Members for disorderly behavior and, with a vote of two-thirds of the House, expel its Members. This authority to expel Members has long been considered to be an extremely broad power, with few if any limitations. And, in Powell v. McCormack, the Supreme Court made clear that its holding applied to Congress authority to exclude a Member-elect and that it was expressing no formal ruling on what limits may exist on Congress power to expel a Member once seated.
Yet, although the courts holding did not officially concern the power to expel, the language of its opinion did pour cold water on the notion that Congress could expel a Member for conduct that occurred before the Member was elected. The court cited a House Select Committee report stating that precedent provides that the House will not expel a Member for reprehensible action prior to his election as a Member.
Indeed, for Congress to expel a Member for conduct that occurred prior to the Members election would risk Congress displacing the voters judgment with its own. As Justice William Douglas put it in a concurring opinion in Powell v. McCormack, when the electors choose a person who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised? Similarly, a 2005 report by the Congressional Research Service stated that the defeat at the polls of Members who had engaged in misconduct was precisely the principal ethics oversight planned by the Framers of the Constitution.
Speaking of Members misconduct, there is an interesting footnote to the Powell case. A year after the Supreme Courts decision, Powell, still plagued by his ethics issues, was narrowly defeated in the Democratic primary. The man who defeated Powell and took the seat that Powell had first held 26 years earlier? Charlie Rangel. Rangel has held the seat ever since.
Sen. Jerry Moran, R-Kan., brings a cake reading "Under New Management" to the Republican senate luncheons in the Capitol, November 13, 2014. The cake was inspired by one the former Sen. Bob Dole, R-Kan., once brought.