Is the Senate a Continuing Body?

The main page of the U.S. Senate website today explains to visitors “What Happens When a New Congress Begins?”  Presumably, this informative blurb, probably written by the Senate historian, is not intended to delve into controversial and bitterly divisive topics.  Yet the author asserts that “the Senate is a continuing body” which “does not have to reorganize itself each new Congress.”

These may appear to be simple statements of established principles (and indeed they are), but they are also hotly disputed by at least some Senators and academics.  The theory on which Senators Udall and Merkley, among others, will attempt to overturn the filibuster rule in the next Congress depends on the Senate not being a continuing body.  The argument for this position is laid out in Professor Aaron Bruhl’s “Burying the ‘Continuing Body’ Theory of the Senate.”  (More on which later.)

In the meantime, one wonders if the Senators read their own website.


Article I provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”  It has long been held by the Senate that disqualification is not an automatic consequence of conviction and removal, but an additional punishment that the Senate may impose in its discretion.  In the case of Judge Porteous, the Senate imposed disqualification for only the third time in history (the other instances were Judge Humphreys in 1862 and Judge Archbald in 1913).

Porteous, therefore, is disqualified from ever holding an “Office of honor, Trust or Profit under the United States.”  But what constitutes such an office?  Over at the Volokh Conspiracy, Professor Somin expresses the view that Porteous is prohibited from serving in Congress, while Professor Volokh maintains that a Senator or Representative does not hold an office of “honor, trust, or profit under the United States.”

Volokh’s position is supported by Article II, section 1, clause 2, which prohibits any “Senator or Representative, or Person holding an Office of Trust or Profit under the United States” from serving as a presidential elector.  This suggests that a Member of Congress does not in fact hold a office of trust or profit as the Constitution uses that term.  More significantly, the Incompatible Offices Clause (Article I, section 6, clause 2) provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  As a textual matter, it is difficult to see how one could hold an office of honor, trust or profit under the United States (within the meaning of the Disqualification Clause) without simultaneously holding an “Office under the United States” within the meaning of the Incompatible Offices Clause.  The logical conclusion, therefore, would seem to be that a Member of Congress holds neither.

Somin’s position, on the other hand, seems to be based on the instinct that it simply would make no sense to disqualify an impeached and convicted official from serving in any executive or judicial position in the federal government, no matter how minor, but not to disqualify him or her from serving in Congress.  Somin does not offer a textual defense of this position, and, although other scholars seem to believe as he does, in most cases they appear to be making an assumption, rather than grappling with the actual text of the Disqualification Clause.  See, for example, Michael Gerhardt, The Federal Impeachment Process 60 (1996) (suggesting that impeached and removed federal judge Alcee Hastings was able to subsequently serve in Congress only because the Senate had failed to disqualify him) and William McKay & Charles W. Johnson, Parliament and Congress 515 n.43 (2010) (same).  

In Democracy’s Privileged Few 280-81 n.68 (2007), Professor Josh Chafetz endorses the Volokh view and contends that those who read the Disqualification Clause as extending to congressional seats are guilty of a “sloppy” reading of the Constitution.  Seth Tillman, in his recent paper, The Originalist Who Came in From the Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause– A Response to Professor Josh Chafetz’s Impeachment and Assassination 17 n.35, indicates that the Volokh/Chafetz position “appears to be the majority view in legal academia today,” a view Tillman evidently shares.

There are a couple of possible arguments against the Volokh/Chafetz view.  The first is that it leads to a result that the Framers could not have intended.  Why allow the Senate to disqualify an officer from serving in any judicial or executive branch position, but not from serving in Congress?  

I think there are quite plausible responses to this question.  I would begin with the fact that the Constitution specifically empowers each house of Congress to expel its own members, but does not authorize it to disqualify the member from future service in Congress.  This was no accident– the Framers were well aware of the John Wilkes case in England, where a Member of Parliament was repeatedly expelled and then re-elected by his constituents.  The Framers were sympathetic to Wilkes and would not have wanted to foreclose an expelled Member of Congress from seeking to regain his seat (in fact, they considered, but ultimately did not adopt, a provision prohibiting expelling a member twice for the same offense).  See Chafetz, Democracy’s Privileged Few 210-11.

Given this, it makes sense that the Disqualification Clause would not extend to congressional seats.  After all, if an expelled member cannot be disqualified despite having committed misconduct while in Congress, it would seem incongruous to disqualify a former executive or judicial officer from running for a congressional seat.  Moreover, the same democratic logic would argue in favor of allowing a state or local constituency to make the final determination as to whether it wanted to be represented by the former officer, with full knowledge of the fact that he (or she) had been impeached and removed.  Just as the particular constituency might disagree with the House or Senate’s expulsion decision, so it might disagree with the House’s decision to impeach and the Senate’s to convict.

Note that this argument is, if anything, even stronger if one accepts the minority view that Members of Congress themselves are subject to impeachment.  If the Framers did not want to prohibit a member from running for re-election after being expelled, it hardly makes sense that they would have a different view regarding impeachment.  Moreover, regardless of whether impeachment is available for Members or not, it seems unlikely that the Framers would have given the Senate the final word on whether a removed officer could run for a seat in the House.

A stronger argument against the Volokh/Chafetz position may be that it is inconsistent with how Congress has interpreted another provision of Article I, which provides that “no Person holding any Office of Profit or Trust [under the United States], shall without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Price, or foreign State.”  This provision has been interpreted to apply to Members of Congress, and the Foreign Gifts and Decorations Act, 5 USC 342, which sets forth how foreign gifts and decorations may be accepted, applies to Members.

This interpretation of the Foreign Emoluments Clause does appear to be inconsistent with the Volokh/Chafetz position.  But the textual inferences discussed earlier still strongly suggest that a Member does not hold an “office of honor, trust or profit” under the United States.  Thus, it may simply be that the traditional interpretation of the Foreign Emoluments Clause has been mistaken.

In my judgment, Volokh and Chafetz appear to be correct.  A disqualified officer is not prohibited from running for Congress.  If former Judge Porteous can convince the voters to elect him, he could join former Judge Hastings on Capitol Hill. 

Judge Porteous and Impeachment for Conduct Prior to Federal Appointment

On December 8, the Senate voted to convict and remove from office U.S. District Judge Thomas Porteous, who became only the eighth official (all of whom have been federal judges) in history to be impeached and convicted.  Porteous’s offenses stemmed from a corrupt relationship he developed while serving as a state judge before his appointment to the federal bench.  His conviction therefore constitutes a significant precedent with respect to an open question (previously discussed here) regarding the applicability of impeachment proceedings to conduct that pre-dates appointment.

Porteous’s lawyers argued that the charges against him should be rejected because they were largely based on “pre-federal conduct,” ie, activities which took place  before the judge was appointed to the federal bench.  They contended that “[i]n the history of this Republic, the United States Senate has never before removed a federal official, through the impeachment process, for ‘pre-federal’ conduct.”   The House Impeachment Managers, on the other hand, argued that “conduct which occurs prior to assuming federal office, particularly when the officeholder concealed such conduct during the confirmation process, is an appropriate basis for impeachment and removal from office.”  

There were four articles of impeachment against Porteous.  Articles I and II involved both Porteous’s conduct as a state judge and his conduct after his nomination and appointment to the federal bench.  However, it seems fair to note that Article II, in particular, appears to be predominantly based on pre-federal conduct.  Article IV, moreover, is entirely based on Porteous’s deception and/or failure to disclose information during the confirmation process.

The final vote on conviction was 96-0 on Article I, 69-27 on Article II, and 90-6 on Article IV (Article III is not relevant for present purposes).  Because Senators are not required to give reasons for their votes, one must be cautious in drawing conclusions about the legal precedent established by the conviction.  It seems clear, however, that the Porteous conviction stands, at a minimum, for the proposition that misconduct during the confirmation process, such as lying to or deceiving the Senate, may constitute a “high crime or misdemeanor.”  Moreover, it appears likely that those Senators who voted to convict on Article II believed that Porteous’s pre-federal conduct itself constituted, at least under the circumstances of that case, a high crime or misdemeanor.