Discipline & Punishment
—Article 1, section 5, clause 2
The Constitution grants the House broad power to discipline its Members for acts that range from criminal misconduct to violations of internal House Rules. While the constitutional authority to punish a Member who engages in “disorderly Behaviour” is intended, in part, as an instrument of individual rebuke, it serves principally to protect the reputation of the institution and to preserve the dignity of its proceedings.
Over the decades, several forms of discipline have evolved in the House. The most severe type of punishment is expulsion from the House, which is followed by censure, and finally reprimand. Expulsion, as mandated in the Constitution, requires a two-thirds majority vote. Censure and reprimand, which evolved through House precedent and practice, are imposed by a simple majority of the full House.
These are not the only penalties which the House may levy on its Members. Beginning with the creation of a formal ethics process in the late 1960s, the Committee on Ethics (which for many years was called the Committee on Standards of Official Conduct) has had the ability to issue a formal “Letter of Reproval.” The Ethics Committee may also opt to register its disapproval of a particular action using more informal means. Committee rules, as well as the rules of the individual party caucuses, provide other means of discipline. For instance, Members may also be fined, stripped of committee leadership positions and seniority, or deprived of other privileges depending on the infractions.
The sternest form of punishment that the House has imposed on its Members is expulsion, an action which it has used only five times in more than two centuries.
The Constitution empowers both the House and the Senate to expel a sitting Member who engages in “disorderly Behaviour,” requiring a two-thirds vote of those present and voting in the chamber to which the Member belongs. As these are internal matters, neither the House nor the Senate requires the concurrence of the other chamber to expel one of its own Members.
In devising this framework, the Constitutional Convention drew upon British legislative tradition as well as nearly 175 years of precedent in the colonial assemblies in North America. Other than the two-thirds requirement, however, the Framers left it up to the House and Senate to determine their own rules and the type of behavior that might warrant expulsion from their respective chambers.
Despite this broad grant of authority, the Framers set the two-thirds threshold because such an action would necessarily remove someone who had been elected by the popular vote of his or her constituents. And though the House has wide discretion to act in such cases, it has demonstrated keen deference to the peoples’ choice of their Representatives. One measure of that restraint is that the House has never expelled any Member for conduct that took place before his or her House service. Nor has the House removed Members for action in a prior Congress when the electorate insisted on re-electing them to the House despite a record of improper conduct.1
Expulsion has traditionally been reserved as punishment for only the most reprehensible conduct or crimes such as treasonous acts against the government. The first three individuals expelled from the House—Missourians John B. Clark and John W. Reid, and Henry C. Burnett of Kentucky—took up arms for the Confederacy during the Civil War. In the modern era, expulsion has been used on two other occasions, both of which involved egregious violations of criminal law and/or flagrant abuses of office.
While expulsion has been used sparingly, it should be noted that some Members who faced imminent expulsion from the House have chosen to resign instead. Two Members who sold appointments to U.S. military academies shortly after the Civil War, South Carolina’s Benjamin Whittemore and North Carolina’s John DeWeese, resigned their seats before the House voted to expel them. Determined to register its contempt for their behavior, the House still censured both men, even after their resignations.
Others lost their seats in subsequent elections before the House took formal action. The Framers anticipated this possibility and, in part, used it to rationalize the House’s two-year election cycle. As James Madison wrote in Federalist No. 57, “the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”2 See a list of Members who have been expelled from the House of Representatives.
While censure also derives from the same constitutional clause, it is not a term the Framers expressly mentioned.3
Censure does not remove a Member from office. Once the House approves the sanction by majority vote, the censured Member must stand in the well of the House (“the bar of the House” was the nineteenth-century term) while the Speaker or presiding officer reads aloud the censure resolution and its preamble as a form of public rebuke.
Decades before the House first expelled Members it contemplated censure to register its deep disapproval of a Member’s behavior. Early in its existence, the House considered (but did not ultimately use) censure to punish Matthew Lyon of Vermont and Roger Griswold of Connecticut for well-publicized breaches of decorum in early 1798. Lyon had spat on Griswold during a heated argument and, when the House later declined to expel or censure the Vermonter, Griswold sought to defend his honor by caning him at his desk. Consumed by this “affray,” the House created a Committee on Privileges to investigate the incident though it ultimately refused to recommend a punishment after both men promised “to keep the peace.”
Especially during the nineteenth century, when politicians fought duels over affronts to their honor and reputation, censure emerged as a means to effectively challenge a Member’s integrity. From the early 1830s to the late 1860s, the House censured individuals for unacceptable conduct that occurred largely during floor debate. The first time the House censured one of its own occurred in 1832 when William Stanbery of Ohio insulted Speaker Andrew Stevenson of Virginia. But since these transgressions did not rise to the level of expulsion, House practice required a simple majority vote on a resolution by those Members present and voting.
Indeed, though the House notably rebuked several Gilded Age Members for bribery, most nineteenth-century censures were handed down for unparliamentary behavior, usually defamatory or insulting statements made against a House colleague. In 1856, in the wake of perhaps the most well-known episode of congressional violence, the House censured Laurence Keitt for assisting fellow South Carolinian Preston Brooks as he brutally assaulted Senator Charles Sumner of Massachusetts with a cane on the Senate Floor; the House failed to muster the two-thirds vote necessary to expel Brooks. Believing that putting the question to their constituents would vindicate them, both Keitt and Brooks resigned their seats and subsequently won the special elections to fill their own vacancies. A decade later, Lovell Rousseau of Kentucky suffered the censure punishment for caning Iowan Josiah Grinnell after the two exchanged insults about their respective military service in the Civil War. Like Keitt, Rousseau resigned his seat after the indignity of being censured only to have constituents re-elect him. See a list of Members who have been censured by the House of Representatives.
Like censure, the word reprimand does not appear in the Constitution. And its meaning has changed over time. For much of the House’s history, in fact well into the twentieth century, the word reprimand was used interchangeably with censure. For instance, the censure resolution passed against Thomas L. Blanton in 1921 directed him to the bar of the House to receive its “reprimand and censure.”
The modern use of the term reprimand evolved relatively recently, following the creation of a formal ethics process in the late 1960s.4 A reprimand registers the House’s disapproval for conduct that warrants a less severe rebuke than censure. Typically, in modern practice, the Ethics Committee recommends a reprimand (as it does in the case of censure) by submitting a resolution accompanied with a report to the full House. Reprimand requires a simple majority vote on the resolution brought before the House and, in some instances, may be implemented simply by the adoption of the committee report. A reprimanded Member is not required to stand in the well of the House to accept a verbal admonishment. Since the first case of the House taking such action in 1976, a total of 10 individuals have been reprimanded by the House. See a list of Members who have been reprimanded by the House of Representatives.
For Further Reading
Brown, Cynthia, “Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives,” Report No. RL31382, 27 June 2016, Congressional Research Service, Washington, DC.
Committee on Ethics, “Historical Summary of Conduct Cases in the House of Representatives, 1798–2004,” http://ethics.house.gov/sites/ethics.house.gov/files/Historical_Chart_Final_Version%20in%20Word_0.pdf (accessed 20 March 2017).
_______. “Summary of Activities,” http://ethics.house.gov/reports/summary-activities (accessed 20 March 2017).
Congressional Record, House, 67th Cong., 1st sess. (27 October 1921): 6880–6896.
Hinds, Asher C. Hinds’ Precedents of the House of Representatives of the United States, Vol. 2 (Washington, DC: Government Printing Office, 1907): Chapter 52 §1642–1643: 1114–1116.
Maskell, Jack H., “Discipline of Members,” in Donald C. Bacon et al., eds, The Encyclopedia of the United States Congress Vol. 2 (New York: Simon & Schuster, 1995): 641–646.
McKay, William, and Charles W. Johnson. Parliament & Congress: Representation & Scrutiny in the Twenty-First Century (New York: Oxford University Press, 2014): 517–546.
1The possible exception to this statement is the case of New York's Adam Clayton Powell, Jr., whom the House refused to seat in the 90th Congress (1967–1969) by ignoring the recommendations of a select committee to investigate Powell’s alleged misconduct in prior Congresses. The U.S. Supreme Court eventually ruled in favor of Powell, arguing that the House did not possess the authority to refuse to seat a Member-elect who was properly credentialed without using the formal expulsion process. See, William McKay and Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century (New York: Oxford University Press, 2014): 519–520.
2James Madison, Federalist, No. 57, “The Founders’ Constitution,” http://press-pubs.uchicago.edu/founders/documents/a1_2_3s16.html (accessed 3 January 2018).
3The Rules of the House provide no detailed enumeration of the forms or methods of discipline. Instead, a description appears in the Rules of the House Committee on Ethics, Rule 24(e), 115th Congress, http://ethics.house.gov/sites/ethics.house.gov/files/Committee_Rules_for_115th_Congress_FINAL_3-27-2017.pdf (accessed 7 June 2017). See also §62–66, House Rules and Manual, 114th Cong. (Washington, DC: Government Publication Office, 2015): 28–32; and Deschler's Precedents of the United States House of Representatives, H. Doc. 94–661, 94th Cong., 2nd sess., vol. 3, ch. 12, §12.
4See, for example, §65, House Rules and Manual, 114th Cong.: 30–31.