Should the House or Senate have the power to expel or exclude a member?

Inspired by this thread, particularly posts #10-14. Also this thread, post #8.

Article I, Section 5 of the Constitution says, “Each House shall be the judge of the elections, returns and qualifications of its own members . . . . 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.”

Is that how it should be? After all, when either house of Congress expels or refuses to seat a member, it is thwarting the will of the voters who elected that member.

Also – if a house refuses to seat a member because of a disputed election, as might well happen in the Buchanan vs. Jennings dispute in Sarasota, FL, or for any other reason – and the Constitution doesn’t actually say what might be a legitimate or illegitimate reason as far as determining “qualfications” is concerned – doesn’t that effectively give senior members veto power over the admission of new ones? That might make all the difference in the balance of power in a closely divided house. (It might seem inconceivable any house would have the chutzpah to exercise that power for purely political reasons with no legal pretext, but the last six years should have taught us that in American politics, the unthinkable is never to be ruled out as a possibility.)

Seems OK to me. It’s not subsantively different than impeachment. And no matter what you put in the Constitution, we, the voters, are the ones who have to hold our elected officials accountable for their actions. If we don’t care what they do, the Constitution isn’t going to save us.

Well, you do point out that it takes a 2/3rds majority to expel someone. With the current balance of power, thats not always an easy bar to reach.

With the case you mentioned (Florida Congressional seat), I think that they are going to tread carefully.

They aren’t going to want to set any kind of precedent that can come back to bite them on the rump later, and they are not going to want to anger their constituents by appearing to reverse a popular vote (if that is what is going on), or ignoring laws already in place to handle these disputes.

How often have these powers been invoked? How many members have ever been expelled? And how many newly-elected members have ever been denied their seats?

I think 2/3 is about right for a threshold. One has it set high because the scoundrel at hand was elected, he was chosen by his constituents, having been adjudged honest, prudent, and discreet. The repesentative or senator embodies the civic power of those who voted for him, that is due considerable respect. One elected should not be easily dispensed with.

On the other hand, if the corruption is grossly unacceptable (Cunningham, Jefferson, take your pick…) there must be a mechanism available for remedy. But it should be set sufficiently high so that a scant majority can’t start applying selective enforcement to its opposition. Its entirely likely that one party may have more than 50% of the votes, but much less likely that they will command two-thirds, marching in lockstep to baseless accusations and expulsions. And, should any party command such power, elminating the opposition by Parliamentary strategems would be pointless and tiresome, when they can simply have them shot.

The power to expel or exclude has always been used sparingly, and for exceptionally good reasons. It’s a part of the “unwritten Constitution” that it not be used for political gain, but as the means of correcting severe abuse of the electoral process.

To me, this is a case of, “if it ain’t broke, don’t fix it.” For 216 years Congress has used the power sparingly and wisely. If and when the Congressional leadership starts expelling people for voting contrary to the majority, then is the time to institute corrective measures. (Which would probably be to replace the Congressional leadership, not to change the Constitutional provision.)

You’ll forgive me if I am somewhat cynical about the current batch of Republican’s respect for the ‘unwritten Constitution’ you cite. I well remember the “nuclear option.”

No, and they also shouldn’t be allowed to raise their own salaries without an intervening election.
That was one of the original parts of the Constitution that was voted down before approval.

Since they were merely reacting to an unprecedented Democratic filibuster over judicial nominees, I’m not sure why you single out the GOP for blame here. It seems the Democrats violated the ‘unwritten Constitution’ as much or more than the GOP.

How did that filibuster (threat) violate the “unwritten Constitution”? There is precedent, after all.

Remember Adam Clayton Powell, no way were they going to let an uppity black man in.

No, not really. The Fortas nomination couldn’t even muster the support of a majority of Senators and was withdrawn by President Johnson.

Not “senior members”, no. The House doesn’t operate as a continuing body, and every member, new or old, needs to have his or her credentials validated and be sworn in anew at the beginning of a new Congress. If a member’s credentials or qualifications are challenged, the entire body of members-elect (as certified by the Clerk based on results certified by the 50 state governors) votes on the challenge. They can reject or accept the challenge on the spot, seat neither party and order a new election, or seat a member “without prejudice” pending further investigation.

Once a member is sworn in and any challenges are disposed of, he or she can only be removed by a 2/3 majority–a much higher bar.

Contested elections were more common earlier in American history. Before the Southern states perfected legal disenfranchisement of African Americans (roughly between the Civil War and 1910), every Congress with a Republican House majority would begin with several investigations of Southern Democratic election shenanigans, which would usually result in the unseating of several members-elect.

As if the last six years are anything special. The canonical abuse of the authority to exclude members occurred in 1967, and was thoroughly vetted in the court case of Powell v. McCormack. The Court found the House’s exclusion (not expulsion) of Adam Clayton Powell on charges of corruption to be constitutionally impermissible. The House is now restricted to verifying the winners of elections and verifying that members-elect meet the constitutional requirements of age, citizenship, and residency.

There was nothing unconstitutional about the “nuclear option”, as each house of Congress has explict plenary power to determine its own rules. Only the conceit that the Senate is a “continuing body”, which need not re-adopt its rules at the beginning of a new Congress, has allowed filibuster rules adopted decades and centuries ago to bind the current Senate.

Bullshit. There isn’t anything “unrwritten” about the Senate rules, and they make changes to them periodically. I wasn’t in favor of that rule change, but there was nothing either unethical or illegal about it. And did it even happen? No.

Except that impeachment is done more or less by the voters, through their elected representatives (or in the case of a state governor recall, by the voters directly).

I don’t think either house of congress should be able to expel members except for grossly corrupt or treasonable practices. And for running around the chamber screaming “WAKE UP!!!” into the ears of sleeping colleagues*.

Before I hit Submit, I’ll just add that I just took a quick look in Wikipedia and it seems that virtually all expulsions so far have met the condition I laid out, and none of them were strictly political.

So I guess it’s all right.
*This happened to me in kindergarten or first grade. We had our heads down on the table for nap time, and the teacher had asked this one kid to wake up the others. He behaved just like what I’ve described above. For some reason, the older I get–and I’m closer to death than to kindergarten now–the funnier I find that in retrospect. But I have a twisty sense of humor.

I agree; I’d be hard-pressed to think of an expulsion that I would characterize as arbitrary or political. The requirement of a 2/3 majority makes it difficult to abuse the process for partisan ends. If anything, explusion has been underused; Preston Brooks wasn’t expelled from the House even after he beat the crap out of a Senator!

The record with respect to exclusion is more mixed. The process of deciding contested elections is inherently political, and the losing side often cries foul. The Powell exclusion discussed above was a clear misuse of the process. Other dubious exclusions occurred during Reconstruction, when Congress required oaths of past loyalty to bar former Confederates from service and when the Senate excluded a Democrat on a hyper-technicality in order to secure the two-thirds majority necessary to override Andrew Johnson’s vetoes.

Having said that, I wouldn’t take the power away from Congress. What is the alternative–to vest final authority in equally partisan state governments, or in the courts? We saw how popular the latter proved in 2000. The current situation, where Congress judges its members but Powell v. McCormack serves as a judicial check on abuse, is satisfactory.