Josh Chafetz: Politician, Police Thyself
[Josh Chafetz, a student at the Yale Law School, is the author of the forthcoming “Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions.”]
WITH three-quarters of voters in the recent election saying that corruption and scandals helped determine how they cast their ballots, one of the first items of business for the Democrats in January should be putting their Congressional houses in order. Indeed, at the orientation sessions for members-elect last month, they were taught, in the words of incoming Representative Michele Bachmann, “how to hire a chief of staff, how to hire other staff, how to stay out of jail.”
But if the new leadership is going to get serious about ethics, it should think less about the legal system and more about its own internal disciplinary procedures. This has been a year of high-profile Congressional scandals — the names Cunningham, Jefferson and Foley spring to mind — but the reason discontent spreads beyond these members’ districts is a belief that their colleagues simply do not care to police themselves.
The Constitution, however, provides for internal discipline as a major check on Congressional corruption — indeed, a check second in importance only to elections. Article I states that each house may “determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”
For the founders, this was no idle threat. In England, Parliamentary self-discipline had always been the norm, and to this day it is the House of Commons itself, not the courts, that punishes members for bribery. (The same was true in America until a 1972 Supreme Court decision.) Members of the House of Commons found to have behaved corruptly were frequently expelled and sometimes imprisoned.
From 1690 to 1710, six members were expelled for corruption, and in 1695 the House sent the powerful Henry Guy, a royal favorite, to the Tower of London for more than two months for taking a bribe. In 1721, seven members were expelled for their role in the South Sea Company scandal, and two — including Chancellor of the Exchequer John Aislabie — were sent to the Tower.
In the United States, neither house of Congress has ever imprisoned a member, but it’s clear that they have the power to do so. After all, the chambers have proven quite willing to imprison non-members for contempt (including, as early as the Fourth Congress, in 1795, for attempting to bribe a member of Congress). And the Houses’ power to punish members is explicit, whereas their power to punish non-members — a power upheld by the Supreme Court in 1821 — is inferred from constitutional structure and parliamentary history. If Congress can imprison a non-member despite the lack of clear textual basis, then surely it can imprison a member, over whom it has explicit punishment powers.
Imprisonment aside, the houses have the powers of expulsion (with a two-thirds vote), censure or reprimand, fine and the stripping of seniority. Perhaps more important, they have the power to investigate — to bring corruption to light and thereby shame the member into resigning. If the member proves shameless, the investigation will, at the very least, provide fodder for opponents in the next election....
Read entire article at NYT
WITH three-quarters of voters in the recent election saying that corruption and scandals helped determine how they cast their ballots, one of the first items of business for the Democrats in January should be putting their Congressional houses in order. Indeed, at the orientation sessions for members-elect last month, they were taught, in the words of incoming Representative Michele Bachmann, “how to hire a chief of staff, how to hire other staff, how to stay out of jail.”
But if the new leadership is going to get serious about ethics, it should think less about the legal system and more about its own internal disciplinary procedures. This has been a year of high-profile Congressional scandals — the names Cunningham, Jefferson and Foley spring to mind — but the reason discontent spreads beyond these members’ districts is a belief that their colleagues simply do not care to police themselves.
The Constitution, however, provides for internal discipline as a major check on Congressional corruption — indeed, a check second in importance only to elections. Article I states that each house may “determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.”
For the founders, this was no idle threat. In England, Parliamentary self-discipline had always been the norm, and to this day it is the House of Commons itself, not the courts, that punishes members for bribery. (The same was true in America until a 1972 Supreme Court decision.) Members of the House of Commons found to have behaved corruptly were frequently expelled and sometimes imprisoned.
From 1690 to 1710, six members were expelled for corruption, and in 1695 the House sent the powerful Henry Guy, a royal favorite, to the Tower of London for more than two months for taking a bribe. In 1721, seven members were expelled for their role in the South Sea Company scandal, and two — including Chancellor of the Exchequer John Aislabie — were sent to the Tower.
In the United States, neither house of Congress has ever imprisoned a member, but it’s clear that they have the power to do so. After all, the chambers have proven quite willing to imprison non-members for contempt (including, as early as the Fourth Congress, in 1795, for attempting to bribe a member of Congress). And the Houses’ power to punish members is explicit, whereas their power to punish non-members — a power upheld by the Supreme Court in 1821 — is inferred from constitutional structure and parliamentary history. If Congress can imprison a non-member despite the lack of clear textual basis, then surely it can imprison a member, over whom it has explicit punishment powers.
Imprisonment aside, the houses have the powers of expulsion (with a two-thirds vote), censure or reprimand, fine and the stripping of seniority. Perhaps more important, they have the power to investigate — to bring corruption to light and thereby shame the member into resigning. If the member proves shameless, the investigation will, at the very least, provide fodder for opponents in the next election....