Order Code RS21196
April 15, 2002
CRS Report for Congress
Received through the CRS Web
Status of a Member of the House Who Has
Been Convicted of a Felony
Jack Maskell
Legislative Attorney
American Law Division
Summary
Members of Congress do not automatically “forfeit” their offices upon conviction
of a crime which constitutes a felony. There is no constitutional disability or
disqualification from Congress for conviction of a crime, other than for certain
treasonous conduct. Members of the House are, however, instructed not to vote in
committee or on the House floor once they have been convicted of a crime the
punishment for which may be two or more years imprisonment. Furthermore, under
party rules, Members may lose their chairmanships of committees or ranking member
status upon conviction of a felony. Conviction of certain crimes may, and has in the past,
subjected Members of the House to internal legislative disciplinary proceedings, including
resolutions of “reprimand” and “censure,” as well as “expulsion” from the House upon
approval of two-thirds of the Members. Neither expulsion nor conviction of a crime
(unless it were for certain national security offenses) would lead to the forfeiture of a
Member’s federal pension.
This report provides a brief overview of the potential consequences, with respect to
a Member's congressional status, that may follow when a sitting Member of the House of
Representatives is convicted of or pleads guilty to a crime which is a felony offense.
Service in Congress by a Convicted Felon: Qualifications for Holding
Office. Conviction of a felony crime does not constitutionally “disqualify” one from
being a Member of Congress, nor from being a candidate for a future Congress, unless that
conviction is for certain treasonous conduct.1 There are three, and only three
qualifications for congressional office set out in the United States Constitution at Article
I, Section 2, clause 2 for Representatives (and Article I, Section 3, clause 3 for Senators):
1 The Fourteenth Amendment to the Constitution, at Section 3, provides a disqualification for one
who, having taken an oath of office to support the Constitution, “engages in insurrection or
rebellion against,”or aids or abets the enemies of, the United States. This disqualification does not
appear to be self-executing with respect to a Member, and would appear to require some act on the
part of the House to find and declare a seat vacant on the grounds of such disqualification.
Congressional Research Service ˜
The Library of Congress
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age, citizenship, and inhabitancy in the State when elected. These qualifications for office
established within the Constitution are the
exclusive qualifications to be a Member of
Congress, and may not be altered or added to by Congress or by any State unilaterally.2
Once a person meets those constitutional qualifications, that person, if elected, is
constitutionally “qualified” to serve in Congress, even if a convicted felon.
The required qualifications, as well as the disqualifications, to serve in Congress were
intentionally kept at a minimum by the Framers of the Constitution to allow the people
broad discretion to send whom they wish to represent them in Congress.3 The people
voting in a district or State, rather than the institutions of Congress, the courts, or the
executive, were meant to control their own decisions concerning their representation in the
federal legislature.
Refraining from Voting in Congress. Although the office of a Member of
Congress is not automatically forfeited upon conviction of a felony, a sitting Member of
the House of Representatives convicted of an offense which has a possible penalty of two
or more years imprisonment should, under House Rules XXIII (10), “refrain from
participation in the business of each committee of which he is a member, and a Member
should refrain from voting” on any question on the floor of the House until his or her
presumption of innocence is restored, or until the individual is reelected to Congress. The
Rule is phrased in advisory and not mandatory language because the House has raised
issues concerning its authority to mandatorily “suspend” a Member from voting by a
process less than an expulsion.4 Members of the House, however, are explicitly instructed
to follow both “the spirit and the letter” of the House Rules (Rule XXIII (2)), and
Members are expected to abide by the abstention rule.
Committee Chairmanships. In addition to the House Rule instructing Members
convicted of certain crimes to refrain from House committee and floor participation, the
rules of the Democratic and Republican parties in the House of Representatives have
generally provided that a Member who has been convicted of a felony for which a sentence
of two years or more may be imposed (or who has been censured by the House) loses his
or her committee chairmanship.
See, for example, Preamble and Rules of the House
2
Powell v. McCormack, 395 U.S. 486 (1969);
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
(1995);
Cook v. Gralike, 531 U.S. 510 (2001).
Note Powell,
supra, discussing Madison’s position
at the Constitutional Convention that qualifications of the elected “were fundamental articles in a
Republican Govt. and ought to be fixed by the Constitution.” 2
Farrand 249-250.
3 Hamilton stated that “the true principle of a republic is, that the people should choose whom they
please to govern them.” 2
Eliot's Debates 257.
See Powell v. McCormack,
supra at 528, 527-
536, discussing influence on Framers of England’s “Wilkes case” and the “long and bitter struggle
for the right of the British electorate to be represented by men of their own choice.”
4 Although early authorities indicated that the power to suspend a Member was an inherent
authority “analogous to the right of expulsion” (
see Cushing,
Law and Practice of Legislative
Assemblies, Section 627, at 251 (9th ed. 1874)), substantive issues have been raised concerning
the power of the House to do this by a simple majority.
See,
Deschler's Precedents, Chapter 12,
§ 15, H. Doc. No. 94-661, 94th Cong., 2d Sess. 187 (1976), noting that the “House [has] indicated
its more recent view that a Member could not be deprived involuntarily of his right to vote in the
House.” Mandatory suspension, Members agreed, would “deprive the district, which the Member
was elected to represent, of representation ....”
See 121
Cong. Rec. 10341, April 16, 1975.
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Democratic Caucus, Rule 51 (1997); Rules of the House Republican Conference, Rule
27 (1997).
Congressional Discipline. Conviction of a crime may subject, and has in the
past subjected, a Member of the House to internal disciplinary action, including a
resolution for “reprimand” or “censure” of the Member, up to and including an
“expulsion” from Congress upon a two-thirds vote of the Members of the House present
and voting. Each House of Congress has the express authority, under Article I, Section
5, clause 2 of the Constitution to punish a Member for “disorderly Behaviour,” and with
the concurrence of two-thirds, to expel a Member. The more recent practice in the House
of Representatives has been, in cases of conviction of a Member of crimes which relate to
official misconduct, not to wait until all appeals are exhausted, but to take cognizance of
the underlying
factual findings of a judicial proceeding where guilt of a Member was
established, regardless of the potential
legal or procedural issues which may be raised and
resolved on appeal.5 The Rules of the House Committee on Standards of Official
Conduct, the House’s standing “ethics” committee, specifically provide, in fact, for
automatic jurisdiction of the Committee when a Member has been convicted in a Federal,
State, or local court of a felony.6
There are no specific guidelines as to what are actionable grounds for congressional
discipline under the constitutional authority of each House to punish its own Members.
Each House of Congress has significant discretion to discipline for misconduct which the
membership finds to be worthy of censure, reprimand, or expulsion from Congress. When
the most severe sanction of expulsion has been employed in the House, however, the
conduct has historically involved either disloyalty to the United States, or the violation of
a criminal law involving the abuse of one's official position, such as bribery.
The House of Representatives has actually expelled only four Members (three
Members and one Member-elect) in its history, three of whom were expelled during the
Civil War period in 1861 for disloyalty to the Union.7 The fourth Member of the House
to be expelled was Representative Michael J. (Ozzie) Myers, of Pennsylvania, on October
2, 1980, after his bribery conviction for receiving a payment in return for promising to use
official influence on immigration bills in the so-called ABSCAM “sting operation” run by
the FBI.8 While the numbers of actual expulsions from the House are low, some Members
5
See discussion in H.R. Rpt. No. 96-1387, 96th Cong. 2d Sess. 4-5,
In the Matter of
Representative Michael J. Myers (1980).
Note beginning of Committee proceedings in the case
of Representative Flood, even after his original trial for bribery ended with a hung jury. H.R. Rpt.
No. 96-856, 96th Cong., 2d Sess.
In the Matter of Representative Daniel J. Flood (1980).
See,
generally, CRS Report No. 88-197A, “House Discipline of Members After Conviction But Before
Final Appeal,” March 1, 1988 (archived).
6 Rules of the Committee on Standards of Official Conduct, Rule 15(d), 19(e).
7
See House expulsions of Representative-elect John B. Clark of Missouri (1861), Representative
John W. Reid of Missouri (1861), and Representative Henry C. Burnett of Kentucky (1861), for
disloyalty to the Union. II
Hinds’ Precedents, supra at §§ 1261,1262.
8 H.R. Rpt. No. 96-1387, 96th Cong., 2d Sess.,
In the Matter of Representative Michael J. Myers
(1980); 126
Congressional Record 28,953 - 28,978 (October 2, 1980). Representative Myers was
(continued...)
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of the House who have been found to have engaged in serious misconduct are not actually
expelled because they chose to resign their seats in Congress (or have lost an imminent
election), before any formal action is taken against them by the House. In addition to the
actual expulsion of Myers in 1980, the committees reviewing Member conduct have
recommended to the House the expulsion of other Members involved in such offenses as
bribery, illegal gratuities and obstruction of justice, who then resigned before the matter
was considered by the full House,9 while other Members convicted of crimes resigned their
seats even before the completion of committee reviews.
The House of Representatives has taken a broad view of its authority to “censure”
or “reprimand” its Members for any conduct which the House finds to be reprehensible,
and/or to reflect discredit on the institution, and which is, therefore, worthy of rebuke or
condemnation.10 A censure or a reprimand, where the full House adopts by majority vote
a formal resolution of disapproval of a Member, may encompass conduct which does not
violate any express law or Rule of the House. In the more recent past, conviction of a
crime relating to the misuse of one’s congressional office, including false statements to the
United States in a payroll scheme where inflated staff salaries were used to pay private
expenses of the Member, has resulted in a “censure” of the Member of the House,11 while
a conviction for fraud and false statements with respect to one’s financial disclosure report
resulted in a “reprimand.”12
Salary. A Member of Congress who is convicted of a crime, and who is then
incarcerated, may be required to forego his or her congressional salary for some period of
the incarceration. Provisions of the United States Code instruct the Chief Administrative
8 (...continued)
expelled after conviction for bribery, conspiracy and violation of the Travel Act.
9
Note, e.g., H.R. Rpt. 97-110, 97th Cong., 1st Sess.,
In the Matter of Representative Raymond F.
Lederer (1981), and House Committee on Standards recommendation of expulsion for bribery in
ABSCAM investigation; and H.R. Rpt. No. 100-506, 100th Cong., 2d Sess.,
In the Matter of
Representative Mario Biaggi (1988), convicted of receiving illegal gratuities, obstruction of justice
and Travel Act violations.
Note also case of Rep. B.F. Whittemore, recommended for expulsion
by Military Affairs Committee for sale of Military Academy appointments, who subsequently
resigned in 1870, and who was then censured
in abstentia by the House (II
Hinds’ Precedents,
supra at § 1273); and House censure of John DeWeese after his resignation (also for the sale of
Academy appointments), but before the committee reported the resolution of expulsion. II
Hinds’
Precedents, supra at § 1239.
See also expulsion resolutions for bribery, and subsequent
resignations of Representatives William Gilbert, Frances Edwards, and Orasmus Matteson, in 1857
(II
Hinds’ Precedents, supra at § 1275).
10 H.R. Rpt. No. 570, 63rd Cong., 2d Sess. (1914); and H.R. Rpt. No. 27, 90th Cong., 1st Sess., 24-
26, 29,
In re Adam Clayton Powell (1967)(recommending censure).
11 H.R. Rpt. No. 96-351, 96th Cong., 1st Sess.,
In the Matter of Representative Charles Diggs,
Jr. (1979),
see H. Res. 378 (post-conviction censure).
12 H.R. Rpt. No. 98-891, 89th Cong., 2d Sess.,
In the Matter of Representative George V. Hansen
(1984). Member’s conviction on this charge was eventually rescinded upon Supreme Court
decision in a later case, regarding applicability to Congress of the underlying statute.
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Officer of the House to deduct from a Member’s salary the amount for each day that the
Member is absent, except in cases of sickness of the Member or his or her family.13
Recall. The United States Constitution does
not provide for nor authorize the recall
of United States officials such as United States Senators, Representatives to Congress, or
the President or Vice President, and thus no Senator or Representative has ever been
recalled in the history of the United States. The recall of Members of Congress was
considered during the drafting of the federal Constitution, but no such provisions were
included in the final version sent to the States for ratification, and the drafting and ratifying
debates indicate a clear understanding and intent of the Framers and ratifiers of the
Constitution that no right or power to recall a Senator or Representative from Congress
existed under the Constitution.14 Although the Supreme Court has not needed to directly
address the subject of recall of Members of Congress, other Supreme Court decisions, as
well as other judicial and administrative rulings, decisions and opinions, indicate that (1)
the right to remove a Member of Congress before the expiration of his or her
constitutionally established term of office is one which resides exclusively in each House
of Congress as established in the expulsion clause of the United States Constitution, and
(2) the length and number of the terms of office for
federal officials, established and
agreed upon by the States in the Constitution creating that federal government, may not
be unilaterally changed by an individual State, such as through the enactment of a recall
provision or other provision limiting the term of a United States Senator or
Representative.15
Re-election. As discussed above concerning qualifications to hold office,
conviction of a felony offense is not a constitutional bar to election or re-election, nor is
congressional censure or expulsion a permanent disability to hold congressional office in
the future. A convicted felon who has also been disciplined by Congress may run for and,
in theory, be re-elected to Congress, and may not be “excluded” from Congress if such
person meets the constitutional qualifications for office and had been duly elected.16 Once
a Member is seated, however, that Member may be subject to discipline by the House.
Although the
authority for each House of Congress to discipline by means such as
13 2 U.S.C. § 39.
14 I Elliot,
Debates on the Adoption of the Federal Constitution, 143-144, 172, and II Elliot,
supra, at 289 (1888); 3 Farrand,
Records of the Federal Convention of 1787, 173 (Appendix A);
note also ratifying debate on lack of authority for state recall in the Constitution, in Swan, “The
Use of Recall in the United States,”
The Initiative, Referendum and Recall, National Municipal
League Series, (Munro, editor), at 298, n.2 (1912);
see Cronin,
Direct Democracy, The Politics
of Initiative, Referendum, and Recall, at 129 (Harvard University Press 1989).
15
Burton v. United States, 202 U.S. 344, 369 (1906);
U.S. Term Limits, Inc. v. Thornton, supra
at 800-802 (under 10th Amendment States can not “reserve” a power which the States never
possessed);
Cook v. Gralike, 531 U.S. 510 (2001);
note, e.g.,
Biennial Report and Opinions of
the Attorney General of the State of Oregon 313, (April 19, 1935): “Should this [state]
constitutional amendment be so construed as applying to the recall of a Representative in Congress
it would to that extent be inoperative.”
16
Powell v. McCormack, supra. While the Constitution governs qualifications to hold federal
office, the States generally regulate qualifications to vote in those elections (Article I, Sec. 2), and
thus a convicted felon may run for federal office, but might be barred by State law from voting in
that election.
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expulsion or censure is not restricted on the face of the Constitution (except for the two-
thirds requirement to expel), it has been a general practice and
policy in Congress not to
expel a Member for past offenses if the electorate knew of the offenses involved, and still
chose to elect that individual as their representative in Congress.17 However, both the
House and the Senate have otherwise disciplined a Member even after re-election, such
as through
censure, for past misconduct even if known to the electorate.18
Pensions. Officers and employees of the United States, including Members of
Congress, do not, upon conviction of every crime or felony, forfeit the federal pensions
for which they qualify and the retirement income that they have accumulated, except if the
officer or employee is convicted of a crime which relates to espionage, treason or other
national security offenses against the United States expressly designated in the so-called
“Hiss Act.”19 A person convicted of a crime may generally be subject to incarceration and
a monetary fine, and in the case of a federal official, such as a Member of Congress, may
be liable in an action to recover sums of monies improperly received under a theory of
“constructive trust.”20 There is at this time no additional penalty imposed, such as
forfeiture of one's retirement income, over and above relevant fines, restitution and
imprisonment relating to the specific offenses involved. As to forfeiture of federal
pensions for federal officers and employees, the nature of the offense is controlling, and
it does not appear to matter if the individual resigns from office prior to or after indictment
or conviction, or is expelled from Congress, or in the case of federal executive officers
(other than the President),21 if the officer is impeached and removed.
17 See discussion in
Constitution, Jefferson's Manual and Rules of the House of Representatives,
§ 64; H.R. Rpt. No. 570, 63rd Cong., 2d Sess. (1914), VI
Cannon's §398, 557-558;
Powell v.
McCormack, supra at 508; Bowman and Bowman, "Article I, Section 5: Congress' Power to Expel
- An Exercise in Self Restraint," 29
Syracuse Law Review 1071, 1089-1090 (1978).
18 H.R. Rpt. No. 27, 90th Cong., 1st Sess.,
supra at 27.
19 See now 5 U.S.C. § 8311
et seq. The provisions of this law concerning forfeiture of pensions
apply at 5 U.S.C. § 8312 to convictions for such offenses as, for example, harboring or concealing
persons; gathering or transmitting defense information; disclosure of classified information;
espionage; sabotage; treason; rebellion or insurrection; seditious conspiracy; perjury in relation to
those offenses; and other offenses relating to secrets and national security.
20 See
United States v. Podell, 572 F.2d 31 (2d Cir. 1978).
21 3 U.S.C. 102, note, P.L. 85-745, as amended.