Q: I am an Ohio voter with a question regarding the qualifications to be a Member of Congress. I read that James Traficant is planning to run for the House of Representatives this year. As I recall, he was expelled from the House years ago for accepting bribes, and even went to jail. Doesnt that make him ineligible for Congress? Or can expelled Members rejoin the House if elected again?
A: In 2002, after almost 18 years in Congress, Rep. James Traficant (D-, now I-Ohio) was convicted of federal charges of bribery, racketeering and tax evasion. He was subsequently expelled from the House and sentenced to eight years in prison. Later that year, despite being in prison, Traficant ran for re-election. Although he lost to a former aide, he did win 15 percent of the vote. More than 27,000 people voted for him.
Several months ago, Traficant was released from prison, and he recently announced that he will run for Congress as an Independent in one of three districts. So, is Traficant eligible for the seat? If the voters of his district were to elect a man who was expelled from Congress for abusing his power, would Congress be required to seat him?
The answer to these questions is almost certainly yes. The requirements for membership in the House appear in Article 1, Section 2 of the Constitution, which states in full: No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. This means there are just three requirements to be a Member of the House. You must be 25 years old, a U.S. citizen for seven years and an inhabitant of the state you represent. These criteria cannot be changed without an amendment to the Constitution.
In the landmark 1969 case Powell v. McCormack, the Supreme Court considered the grounds on which Congress may refuse to seat someone who has been duly elected. The case involved Rep. Adam Clayton Powell Jr. (D-N.Y.) who, in 1966, faced a House Special Committee investigation relating to expenditures of a House committee that he chaired. The special committee concluded that Powell deceived the House about travel expenses and that there was strong evidence of illegal salary payments to his wife. However, no formal action was taken against Powell at the time. Later that year, Powell won re-election. Congress, however, refused to seat him.
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.
C. Simon Davidson is a partner with the law firm McGuireWoods LLP.
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Rep. Eric Swalwell, D-Calif., walks on Broadway after a Future Forum with young entrepreneurs in the Flatiron District of New York City, April 16, 2015. Reps. Steve Israel, D-N.Y., Seth Moulton, D-Mass., and Grace Meng, D-N.Y., also attended.