Scolding Joe Wilson

The Hill newspaper reports that Speaker Nancy Pelosi “has agreed the House should vote . . . on scolding Rep. Joe Wilson (R-S.C.) for his outburst during President Barack Obama’s speech unless he apologies on the floor of the House.”  The “scolding” will apparently take the form of a “resolution of disapproval” that would be introduced sometime this week.  It is not exactly clear what a “resolution of disapproval” is, but it appears to be in substance a censure or reprimand of Representative Wilson.  

            It is perhaps a fool’s errand to analyze this intensely political and subjective issue as a question of neutral application of House rules, but since there are no doubt Members of Congress asking the Parliamentarian to do just that, here goes.   

            Although The Hill states that it is against House rules to “impugn the integrity of the president,” one will search the House rules in vain for an express declaration to that effect.  Rule XVII, dealing with “Decorum and Debate,” prohibits references in debate to the Senate, Senate proceedings or individual Senators, but does not explicitly mention the President.   

            Nevertheless, House precedents clearly establish limits on what Members can say about the President on the floor.  This question was most thoroughly considered in 1909, when Representative Willett accused President Theodore Roosevelt of “persistent defamation” of a particular military officer.  Another Member raised a point of order and asked that the words be taken down and reported to the House.  Subsequently, the House approved a resolution to appoint a special committee to look into the matter. 

            Representative Willett argued that he did not violate any rule, stating: “Freedom of speech has always been held so sacred that the utmost latitude has been allowed in debate, and I respectfully submit that to strike my speech from the Record in this instance will establish a precedent extremely dangerous, because it will mean, in the light of past precedents, that the House has at last surrendered to the proposition that no Member can discuss any subject the discussion of which happens to displease the majority.”

The committee, however, rejected this argument, noting that “freedom of speech in debate does not mean license to indulge in personal abuse or ridicule. The right of Members of the two Houses of Congress to criticise the official acts of the President and other executive officers is beyond question, but this right is subject to proper rules requiring decorum in debate.” Analogizing to the prohibition on criticizing the Senate, the committee pointed out that “[i]n matters of legislation the Constitution therefore makes the House of Representatives, the Senate, and the President coordinate, dependent, and interdependent powers, and the principles of proper decorum and due courtesy governing the relations of the two Houses of Congress should also, to a certain extent, govern the relations of the House of Representatives and the President.” Finally, it recognized that there was no “clear line of distinction” between legitimate criticism of the President and that which is “merely personal and irritating, having no legitimate connection with the powers or duties of the House and tending only to produce ill feeling, estrangement, and loss of respect between two coordinates branches of the Government.” Nevertheless, it concluded that Willett’s words crossed the line and should be expunged from the record. See VI Cannon’s Precedents § 2497.

In accordance with this precedent, a Member alleged to have referred to the President in terms of opprobrium may be called to order under House Rule XVII, clause 4, and the Chair will determine whether the remarks were in order. If the Chair (or the House) rule against the Member, he or she is not permitted to speak further on that day without the permission of the House. A review of the Parliamentarian’s Notes reveals that there have been many instances where Members have crossed the line in discussing the President:

Personal abuse, innuendo, or ridicule of the President, is not permitted

(VIII, 2497; Aug. 12, 1986, p. 21078; Oct. 21, 1987, p. 8857; Sept. 21, 1994,

p. 25147; Sep. 7, 2006, p. ——). Under this standard it is not in order

to call the President, or a presumptive major-party nominee for President,

a ‘‘liar’’ or accuse him of ‘‘lying’’ (June 26, 1985, p. 17394; Sept. 24, 1992,

pp. 27345, 27346; Nov. 15, 1995, p. 32587; June 6, 1996, pp. 13228, 13229;

Mar. 18, 1998, p. 3937; Nov. 14, 2002, p. 22370; July 15, 2003, p. ——;

Mar. 24, 2004, p. ——). Indeed, any suggestion of mendacity is out of order.

For example, the following remarks have been held out of order: (1) suggesting

that the President misrepresented the truth, attempted to obstruct

justice, and encouraged others to perjure themselves (Feb. 25, 1998, p.

2621); (2) accusing him of dishonesty (July 13, 2004, p. ——; June 29,

2005, p. ——), accusing him of making a ‘‘dishonest argument’’ (Sept. 12,

2006, p. ——), charging him with intent to be intellectually dishonest (May

9, 1990, p. 9828), or stating that many were convinced he had ‘‘not been

honest’’ (Mar. 5, 1998, p. 2620); (3) accusing him of ‘‘raping’’ the truth

(Apr. 24, 1996, p. 8807), not telling the truth (Oct. 29, 2003, p. ——), or

distorting the truth (Sept. 9, 2003, p. ——); (4) stating that he was not

being ‘‘straight with us’’ (Nov. 19, 2003, p. ——); (5) accusing him of being

deceptive (Mar. 29, 2004, p. ——; Mar. 31, 2004, p. ——; Feb. 1, 2006,

p. ——), fabricating an issue (July 6, 2004, p. ——), or intending to mislead

the public (Oct. 6, 2004, p. ——; June 9, 2005, p. ——); (6) accusing him

of intentional mischaracterization, although mischaracterization without

intent to deceive is not necessarily out of order (July 19, 2005, p. ——).

Although Rule XVII provides that “[i]f the case requires it, an offending Member, Delegate, or Resident Commissioner shall be liable to censure or such other punishment as the House may consider proper,” it does not appear that any Member has ever been punished for making inappropriate remarks about the President. In many cases, Members who have violated the rules have merely been admonished by the Chair. For example, on June 29, 2005, Representative McGovern stated on the floor that President Bush had “misled this Nation to justify his invasion of Iraq” and “shamelessly, in my opinion, invoked the terrible tragedy of September 11 to justify our continued occupation.” Representative McDermott then referred to Iraq as “a war of conquest by George Bush” and noted that “nobody trusts [the President’s] judgment.” In response, the Chair reminded members that “they should not make derogatory statements toward the President.” No further action appears to have been taken.

Had Representative Wilson accused President Obama of lying about health care in the course of debate, it seems likely that he would have received a similar reminder but no other consequences. At most, his words would have been taken down and ruled out of order. It seems inconceivable, based on House precedents, that he would have faced censure or other punishment.

Of course, Wilson’s remark did not occur in the course of debate, but was an interjection during the President’s address to a joint session of Congress. One can therefore plausibly argue that he committed a greater offense, from the standpoint of decorum, than someone who made similar remarks in the course of a debate. It certainly seems that crying out “you lie” in the middle of the President’s speech has no legitimate connection to the House’s powers or duties and tends only to produce ill feeling, estrangement, and loss of respect between the branches.

On the other side, Wilson did apologize, both publicly and to the President, for his behavior. Given this apology, it is hard to see how one could characterize his behavior as so much worse than garden variety “abuse, innuendo or ridicule of the President” to warrant an unprecedented punishment by the House.

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