Felons on the Floor?

The Telegraph reports that a point of order has been raised in Parliament with regard to the propriety of allowing a “convicted criminal” the right of access to Westminster. A former member of Parliament named Chris Huhne, who two years ago resigned and pled guilty to the offense of “perverting the course of justice” (something having to do with his wife taking his “speeding points”), applied for and received a parliamentary pass that is customarily made available to former MPs.

The point of order, raised by a conservative MP (Huhne was a Liberal Democrat), questions whether these privileges can be revoked with regard to Mr. Huhne:

Given the low esteem many members of this House are held in by our constituents in regard to poor behaviour, is there any method [by which] we can actually rescind this application to ensure someone who is a convicted criminal cannot freely walk around the Palace of Westminster?

Judging by the speaker’s response, the answer is no. But this got me to wondering whether we could have the same issue in Congress. Both the House and Senate allow former members floor privileges and certain other courtesies. This handy and delightfully brief CRS report describes these privileges and notes certain exceptions. For example, former members cannot access the floor if they are registered lobbyists.

But there appears to be no exception for felons.

House Rules on Decorum and Debate: Are there Words You Can Never Say on the Floor?

Apropos nothing in particular, here is a recent National Journal article discussing whether the House categorically forbids the use of certain vulgar or profane words in the course of debate. House Rule XVII(1)(b) simply states that “[r]emarks in debate (which may include references to the Senate or its Members) shall be confined to the question under debate, avoiding personality.” The Parliamentarian’s Note to this section, though, explains that “Members should refrain from using profanity or vulgarity in debate,” citing seven separate rulings from 1991 to 2004.

The short answer seems to be that there isn’t a George Carlin type list of words that cannot be uttered on the House floor, but there are many more than seven words that are frowned on, particularly if directed at the president, a senator or another member of the House.

The rules of decorum are enforced by the presiding officer. As former House Parliamentarian Charlie Johnson (in a book co-authored by William McKay, the former Clerk of the House of Commons) explains, however, the presiding officer typically will not act unless a point of order is raised from the floor. See Parliament and Congress 189 (“Because the person occupying the Chair is not a full-time non-partisan presiding officer, but rather is a Member of the Majority party selected by the Speaker to perform a non-partisan role for a temporary period . . ., the occupants of the Chair are understandably more reluctant to render rulings on their own initiative.”). Even the former prohibition against references to the Senate or individual senators, founded on Jefferson’s observation that “it is the duty particularly of the Speaker to interfere immediately, and not to permit expressions to go unnoticed which may give a ground of complaint to the other House,” was liberalized by a rules change in the 109th Congress. As Johnson and McKay note, “[t]his rules change instantly overrode two centuries of precedent based on the standard stated in Jefferson’s Manual, and relieved the Chair of the constant responsibility to admonish Members against political criticisms of the Senate or individual Senators.” Id. at 190.

For those interested in a comparison to Westminster (as Professor Magliocca might be), the substantive rules of decorum appear similar, but the Speaker of the House of Commons takes a more active role in enforcement. This, Johnson and McKay explain, is due to “the credibility and traditional stature of a truly non-partisan Speaker and panel of three Deputies who eschew all political activity in the Chair [which allows] them to take initiatives to preserve to preserve order, [which actions] are not subject to challenge by appeal.” Id. at 192.

The National Journal article notes two studies by the Annenberg Public Policy Center regarding civility in Congress. One report discusses breaches of decorum and various categories of offending words such as “name-calling,” “aspersion,” accusations of mendacity and “taboo words” considered vulgar (the report identifies 11 such words that have been officially found to be taboo). Perhaps reflecting the procedural differences mentioned above, the Annenberg Center also found that the U.S. House is more vulgar than the House of Commons (USA!, USA!).

The National Journal author sought comment from Tom Wickham, the current House Parliamentarian, who is responsible for advising the presiding officer on these delicate issues. Unfortunately, “Wickham, in keeping with tradition, declined to discuss how his office rules on language.” Probably a wiser choice than unleashing a string of obscenities on the inquiring reporter, but still . . .

“Precedents” and Presidential Addresses

As you may have heard, the President has requested an opportunity to address a joint session of Congress. His request initially was to make the address on September 7, but the Speaker responded that because of certain logistical concerns “it is my recommendation that your address be held on the following evening.”

In reference to this exchange, Luke Russert tweeted that the “House historian says public move by Boehner to tell Obama to change date is unprecedented.” To the extent that this implies that Presidents have traditionally determined the dates of their addresses to joint sessions of Congress without consultation or negotiation with the leadership, it is misleading both as to precedent and as to the advice of the House Historian.

A joint session to hear the President is convened by a concurrent resolution. See Deschler’s Precedents, ch. 1, § 3.4; see also House History: Joint Meetings, Joint Sessions and Inaugurations. As a formal matter, therefore, permission of both Houses is required; Deschler indicates that in the House the Speaker and leadership informally exercise control over the date and time of joint sessions or meetings. There is no indication that the President has the authority to set the date and time unilaterally.

Thus, it stands to reason that when the President wants to address a joint session, the White House contacts the congressional leadership and a date and time is worked out in private discussions. This seems to be the protocol that the White House was attempting to follow when it contacted the Speaker’s office. The absence of any “precedent” on this issue does not mean that there has never been any negotiation or disagreement on a date and time; it merely means that no one went public with the issue before an agreement was reached. That is all the House Historian was trying to convey.


Update: Russert’s tweet was linked to by this Jim Downie blog post (which in turn was cited by Jonathan Capehart in the Washington Post). Downie and Capehart, however, did not link to the original tweet, but to someone else’s selective quotation of that tweet. If one goes to the original tweet, it reads as follows: “House historian says public move by Boehner to tell #Obama to change date is unprecedented. Negotiations usually happen behind closed doors.”

In fairness to Russert, the second sentence makes his statement less misleading. The statement that “negotiations usually happen behind closed doors” is an accurate paraphrase of what the House Historian said. Of course, it also makes the first sentence entirely meaningless, at least for the purposes of apportioning blame between the President and the Speaker.

Needless to say, whoever knowingly omitted that second sentence must have intended to mislead.


Update 2: This Hot Air post indicates that there is some “precedent” for a Speaker refusing a presidential request to address Congress, though in that case it was President Reagan’s request to address the House, rather than a joint session. Something that the House Historian might want to note, although not inconsistent with the observation that negotiations usually take place behind closed doors.



More on the Wilson Matter


           A few more observations on the Joe Wilson matter.  A Fox News reporter this morning commented that Wilson’s conduct violated section 370 of the House Rules and Manual.  This is true, sort of.  Section 370 is actually the provision of Jefferson’s Manual of Parliamentary Practice which states “[i]n Parliament, to speak irreverently or seditiously against the King is against order.”  As the House Parliamentarian’s Notes observe, this provision is “manifestly inapplicable” to the House of Representatives.  However, because the House Rules do not directly address the subject, this section is where the Parliamentarian has collected the rulings (quoted in my previous post) regarding “personal abuse, innuendo, or ridicule of the President.” 

            Second, there has been some more explanation regarding the “resolution of disapproval.”  As I surmised, this resolution is intended to be a form of punishment.  One article says that “[r]esolutions of disapproval are a rare, though not unprecedented, way of punishing a member.”  Maybe so, but this historical summary of conduct cases in the House, compiled by the Ethics Committee, contains no evidence that the House has ever used a “resolution of disapproval” to punish a member. 

            Apparently the “resolution of disapproval” is meant to be a milder punishment than the recognized punishments of censure or reprimand.  According to Rule 24(g) of the Rules of the House Ethics Committee, reprimand is appropriate for “serious violations” and censure is appropriate for “more serious violations.”  Why, exactly, the House would need to establish yet another level of verbal chastisement for Representative Wilson is a matter of speculation.  Perhaps it was deemed unwise to equate Wilson’s behavior with that of those who have been previously reprimanded by the House.   Representative Barney Frank, for example, was reprimanded in 1990 for “1) Use of personal residence for prostitution by third parties, 2) improper contacts with probation office on behalf of personal assistant, 3) improper dismissal of assistant’s parking tickets, and 4) sexual activity in the House gymnasium.”  

            Finally, it is worth mentioning a precedent that is likely to be discussed in the debate on the resolution of disapproval.  On October 18, 2007, Representative Pete Stark, in discussing a children’s health care bill, stated: ‘‘You don’t have money to fund the war or children. But you’re going to spend it to blow up innocent people if we can get enough kids to grow old enough for you to send to Iraq to get their heads blown off for the President’ amusement.’’  The chair responded to this comment by noting “Members are reminded not to engage in personalities toward the President.”  This, however, was not sufficient for Minority Leader Boehner, who introduced a resolution to censure Stark, which resolution was tabled by a vote of 196 to 173.   

            I think fair-minded people will agree that Stark’s comment was significantly worse, from the standpoint of heaping opprobrium on the president, than Wilson’s.  While Stark’s comment was not made during a presidential address, it equally lacked any legitimate connection to a House power or duty, and was at least as likely to cause ill-feeling, estrangement and loss of respect between the branches.  It is therefore difficult to see how one could justify punishing Wilson if one did not support punishing Stark. 

            The one distinction that favors Stark is that he apologized on the House floor, which is what Wilson’s critics have demanded (and probably why they have demanded it).  However, Stark did not apologize until after the resolution of censure was tabled, and there is no particular reason to believe that he would have been punished if he had not apologized.  More importantly, it is unclear why a personal apology offered to the President, as occurred in Wilson’s case, should be less of a mitigating factor than an apology given on the House floor.  (The House Ethics Committee has considered personal apologies as mitigating factors in the past, for example in the case of personal apologies made by members to Representative Nick Smith after they made “regrettable” comments to him during the vote on the Medicare Prescription Drug bill of 2003).

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.