Expulsion and Censure Actions Taken by the Full
Senate Against Members
Updated November 12, 2008
Jack Maskell
Legislative Attorney
American Law Division
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Expulsion and Censure Actions Taken by the Full
Senate Against Members
Summary
The authority of the United States Senate (as well as of the House) to establish
the rules for its own proceedings, to “punish” its Members for misconduct, and to
expel a Member by a vote of two-thirds of Members present and voting, is provided
in the Constitution at Article I, Section 5, clause 2. This express grant of authority
for the Senate to expel a Senator is, on its face, unlimited — save for the requirement
of a two-thirds majority. In the context of what the Supreme Court has characterized
as, in effect, an “unbridled discretion” of the body, expulsions in the Senate, as well
as the House, have historically been reserved for cases of the most serious
misconduct: disloyalty to the government or abuses of one’s official position. The
Senate has actually expelled only 15 Members — 14 of those during the Civil War
period for disloyalty to the Union (one of these expulsions was subsequently revoked
by the Senate), and the other Senator during the late 1700s for disloyal conduct. The
House of Representatives has expelled only five Members in its history, three during
the Civil War period, one in 1980, and another in 2002, after convictions for bribery
and corruption offenses related to official congressional duties. In the Senate, as well
as in the House, however, other Members for whom expulsion was recommended
have resigned from office prior to official, formal action by the institution.
The term “censure,” unlike the term “expel,” does not appear in the
Constitution, and has traditionally been used to describe the “punishment” imposed
by the Senate under authority of Article I, Section 5, clause 2, when the full body
formally disapproves of conduct by way of the adoption of a resolution expressing
such condemnation or disapproval. There is no specific forfeiture of rights or
privileges that automatically follows a “censure” by the Senate. The term “censure”
is used to describe the action of the Senate formally adopting a resolution expressing
the body’s “censure,” “condemnation,” “denouncement,” or other expression of
disapproval of a Member’s conduct, even when the word “censure” is not expressly
included in the language of the resolution. There is no specific or official hierarchy
or ranking of the terms that have been employed in a censure resolution, although
there may be certain connotations associated with the language used in a resolution
because of precedents and associations with past Members disciplined.
The Senate has censured nine Senators for various misconduct, including
conduct not a violation of any law or specific written Senate ethics rule, when such
conduct is found contrary to “acceptable norms of ethical conduct in the Senate,”
contrary to “accepted morals” and “senatorial ethics,” when found to “derogate from
the public trust expected of a Senator,” and/or found to be “reprehensible” conduct
which brings the Senate into “dishonor and disrepute.” Conduct resulting in Senate
“censure” has included violating orders of secrecy of documents; fighting in the
Senate (“censure”); allowing a lobbyist with interests in particular legislation to be
on official staff with access to the secret considerations of the legislation by
committee (“condemn”); non-cooperation and abuse of investigating committees of
the Senate (“condemn”); financial irregularities concerning political contributions
(“censure”), office expenses and contributions (“denounce”), and excessive
honoraria, official reimbursements and gifts (“denounce”).
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Contents
Expulsion ........................................................2
Distinguished from Exclusion....................................3
Authority As to Grounds and Timing..............................4
Practices and Precedents........................................9
Censure ........................................................11
Condemn ...................................................12
Denounce ...................................................14
Grounds For Censure..........................................16
Reprimand ......................................................18
Senate Precedents.................................................21
Expulsion ...................................................21
Censure ....................................................22
Conclusion ......................................................26
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Expulsion and Censure Actions Taken by
the Full Senate Against Members
Each house of the United States Congress is expressly authorized within the
Constitution to “punish” its own Members for misconduct, and the Senate has
exercised this authority in the past by imposing formal “censures,” imposing
restitution costs, and by expelling Senators from the Senate. In imposing legislative
discipline against their Members, the Senate and the House operate through their
rulemaking powers,1 and the express provision for legislative discipline is
specifically set out within the clause of the Constitution establishing the rulemaking
authority of each house of Congress, at Article I, Section 5, clause 2:
Each House may determine the Rules of its Proceedings, punish its Members for
disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
The underlying justification for legislative discipline has traditionally been to
protect the integrity and dignity of the legislative institution and its proceedings,
rather than merely to punish an individual;2 and such internal legislative process is
additional to any potential criminal or civil liability that a Member might incur for
any particular misconduct.3 Senators are subject to internal, congressional discipline
for any conduct which the institution of the Senate believes warrants such discipline.
The express constitutional authority drafted by the Framers of the Constitution was
influenced by British parliamentary practice, as well as our own colonial legislative
experiences, and reflects the principle and understanding that although the
qualifications of Members of Congress were intentionally kept to a minimum to
allow the voters the broadest discretion in sending whomever they please to represent
1 Justice Joseph Story, Commentaries on the Constitution of the United States, Vol. II, § 835
(Boston 1883); see discussion in Deschler’s Precedents of the United States House of
Representatives, H. Doc. 94-661, Volume 3, Ch. 12, § 12, p. 168 (1979).
2 Cushing, The Law and Practice of Legislative Assemblies, pp.250-251, 257-259, 268-270
(Boston 1874). Internal disciplinary action is “rooted in the judgment of the House as to
what was necessary or appropriate for it to do to assure the integrity of its legislative
performance and its institutional acceptability to the people at large as a serious and
responsible instrument of government.” Deschler’s Precedents, supra at 174, citing Powell
v. McCormack, 395 F.2d 577, McGowan concurring, at 607 (D.C.Cir. 1968), rev’d on other
grounds, 395 U.S. 486 (1969); Story, supra at § 835. Note British Parliamentary practice:
“The practice of expulsion is not so much disciplinary as remedial, not so much to punish
Members as to rid the House of persons who are unfit for membership.” Erskine May, Law,
Privileges, Proceedings and Usage of Parliament, at 105 (London 1964).
3 Senate or House discipline does not foreclose a criminal prosecution on the same matter,
nor does criminal prosecution bar subsequent congressional discipline as “double jeopardy.”
United States v. Rose, 28 F.3d 181, 189-190 (D.C.Cir. 1994); 2 Op. Atty. Gen. 655 (1834);th
United States v. Traficant, 368 F.3d 646 (6 Cir. 2004), cert. denied, 543 U.S. 1055 (2005).
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them in Congress,4 the Senate and the House have the right to discipline those who
breach their privileges or decorum, or who damage their integrity or reputation, even
to the extent of expelling from Congress a duly-elected Member.5
On several occasions, Senate committees to whom censure or expulsion
resolutions were referred have recommended certain discipline to the full body, but
either the Senate took no action, adjourned prior to consideration (and the Member
was defeated in a subsequent election), the Member resigned before Senate action,
or the Senate simply did not act upon the particular recommendation or resolution.6
Additionally, it should be noted that the Senate has delegated to the Select
Committee on Ethics the authority to investigate any “improper conduct” of a Senator
or employee “which may reflect upon the Senate,” and to recommend to the Senate
appropriate disciplinary action.7 As part of the authority delegated to it, the Senate
Select Committee on Ethics may issue, and has in the past issued, “a private or public
letter of admonition” on the committee’s own accord, without further Senate action.8
The focus of this report, however, is upon those disciplinary actions which were
taken by the full Senate against Members.
Expulsion
Expulsion is the form of action whereby the Senate (or the House), after a
Member has taken the oath of office,9 removes that Senator (or Representative, in the
case of the House) from membership in the respective body by a vote of at least two-
thirds of the Members present and voting.10 The authority to expel a Member is
4 Alexander Hamilton, II Eliot’s Debates 257; note also James Madison, 2 Farrand, Records
of the Federal Convention of 1787, 249-250, and Federalist Papers, No. 57; Powell v.
McCormack, 395 U.S. 486, 508, 509, 531 (1969).
5 See footnote 2, supra; Story, supra at §§ 835-836. Note also Senator John Quincy Adams’
arguments in 1807 on Senate’s authority to expel a Member even after re-election, II Hinds’
Precedents of the House of Representatives, § 1264, p. 817 (1907).
6 For a complete list of Senate precedents prior to 1990, see generally S. Doc. 103-33, Butler
and Wolff, Senate Historical Office, United States Senate Election, Expulsion and Censure
Cases, 1793-1990 (1995) and S. Doc. No. 92-7, 92d Cong., 1st Sess., Senate Election,
Expulsion and Censure Cases from 1793 to 1972 (1972).
7 Standing Orders of the Senate, Senate Manual, § 80 (S.Res. 338, 88th Cong., Section 2(a),
as amended).
8 S.Res. 338, as amended, supra at Section 2(d)(3) and 2(a)(4).
9 This is distinguished from an “exclusion” by majority vote prior to the taking of the oath
of office and seating of a Member-elect, note Powell v. McCormack, 395 U.S. 486 (1969).
(Several Senators from southern states who had not shown up to take their seats, however,
were “expelled” during the Civil War period.)
10 See Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practices, at p. 683
(1992), e.g., two-thirds vote requirement for Constitutional Amendments. In House, see
Brown, House Practice, Guide to the Rules, Precedents and Procedures of the House, 108th
Cong., “Voting,” at § 28, p. 935: “A two-thirds vote ordinarily means two-thirds of those
(continued...)
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expressly provided for in the Constitution at Article I, Section 5, clause 2. This grant
of authority within the Constitution for each house of Congress to expel a Member
appears to have been influenced by the parliamentary practice in England whereby
Members of the House of Commons were expelled, regardless of the nature or timing
of the offense, as a disciplinary action, as well as a remedial measure to deal with
those deemed “unworthy” or “unfit” for membership.11
Distinguished from Exclusion
It should be noted that the disciplinary action of expulsion is different than, and
is distinguished from, the action of exclusion. An exclusion is where the Senate (or
the House) refuses to seat a Member-elect, generally upon the objection of another
Member or Member-elect, by a simple majority vote on the grounds that such
challenged Member-elect has either not met the three standing constitutional
qualifications of office (age, citizenship, and inhabitancy in the state from which
elected), or was not “duly elected.”12 The authority of the Senate to exclude a
Member-elect by a simple majority vote of the body — although there had been some
legitimate minority argument to the contrary in the past — is now clearly understood
to be limited to questions of whether a Member-elect meets the constitutional
qualifications for office,13 or the question of whether the Member-elect had been
“duly elected” (a question which is generally resolved in a so-called “contested
election” case).14 The Supreme Court in Powell v. McCormack stated clearly that
“the Constitution leaves the House [and the Senate] without authority to exclude any
person, duly elected by his constituents, who meets all the requirements for
membership expressly prescribed in the Constitution.”15
The precedents in the Senate which pre-date the 1969 Powell v. McCormack
decision, and which consider moral character and/or past misconduct in assessing the
“suitability,” “fitness,” or “qualifications” of an individual who was duly elected by
the voters of a state in an “exclusion” proceeding, are, therefore, of suspect relevance
and value as a precedent concerning this issue at the present time. As explained in
10 (...continued)
voting, a quorum being present, and not two-thirds of the entire membership.”
11 Story, supra, at Volume II, §836; May, The Law, Privileges, Proceedings and Usage of
Parliament, supra at 104 -106.
12 An “exclusion,” under the authority of Art. I, Section 5, cl. 1 of the U.S. Constitution for
each House to judge the “Elections, Returns and Qualifications of its own Members,” is now
understood not to be a disciplinary procedure addressing “fitness” or “character” of a
Member-elect. See Powell v. McCormack, supra at 522, Deschler’s Precedents, supra at
Ch. 12, §12, p. 169, n. 21.
13 Article I, Section 3, cl. 3 for Senators (and Art. I, Section 2, cl. 2 for House Members).
14 Challenging the election of a Member-elect in the Senate is generally conducted under the
procedures for contested elections cases. See Office of Senate Legal Counsel, Contested
Election Cases (October 2006). As for the House, see the Federal Contested Elections Act,
2 U.S.C. §§ 381-396. Note also, CRS Report RL33780, Procedures for Contested Election
Cases in the House of Representatives, by Jack Maskell and L. Paige Whitaker.
15 395 U.S. at 522; see also 395 U.S. at 550.
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Deschler’s Precedents, “The [Powell] decision apparently precludes the practice of
the House or Senate, followed on numerous occasions during the 19th and 20th
centuries, of excluding Members-elect for prior criminal, immoral, or disloyal
conduct.”16
Authority As to Grounds and Timing
There is no limitation apparent in the text of the Constitution, nor in the
deliberations of the Framers, on the authority to expel a Member of Congress, other
than the two-thirds vote requirement. One study of the expulsion clause summarized
the Framers’ intent as follows:
[From] the history of Article I, Section 5, clause 2, and in particular its course in
the Committee of Detail, it is clear that the Framers ... did not intend to impose
any limitation on Congressional power to determine what conduct warranted
expulsion .... Nor do the debates in the Convention suggest any desire to impose17
any other substantive restrictions on the expulsion power.
Justice Joseph Story similarly concluded that it would be “difficult to draw a clear
line of distinction between the right to inflict the punishment of expulsion, and any
other punishment upon a member, founded on the time, place, or nature or the
offense,” and that “expulsion may be for any misdemeanor, which, though not
punishable by any statute, is inconsistent with the trust and duty of” a Member.18
The Supreme Court of the United States, citing Justice Story’s historic treatise
on the Constitution, found an expansive authority and discretion within each house
of Congress concerning the grounds and the timing for an expulsion. In In re
Chapman, the Supreme Court noted the Senate expulsion case of Senator William
Blount19 as supporting the constitutional authority of either house of Congress to
punish a Member for conduct which in the judgment of the body “is inconsistent with
the trust and duty of a member” even if such conduct was “not a statutable offense
nor was it committed in his official character, nor was it committed during the
session of Congress, nor at the seat of government.”20
The Supreme Court has thus recognized a very broad discretion and authority
of each house of Congress to discipline its Members under its own chosen standards,
generally without established right to judicial review. Describing the congressional
16 Deschler’s Precedents Volume 2, Chapter 7, § 9, at 98. Note, for example, the Senate
consideration of the case of Senator-elect Arthur R. Gould of Maine, in 1926, concerning
allegations of bribery of a foreign official in 1910 in a business deal. Case No. 111, Senate
Election, Expulsion and Censure Cases, S. Doc. 103-33, supra.
17 Bowman and Bowman, “Article I, Section 5: Congress’ Power to Expel - An Exercise in
Self Restraint,” 29 Syracuse Law Review 1071, 1089-1090 (1978).
18 Story, supra at § 836.
19 II Hinds’ Precedents, supra at §1263.
20 166 U.S. 661, 669-670 (1897).
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disciplinary process, the Supreme Court in United States v. Brewster, noted in dicta:
The process of disciplining a Member in the Congress ... is not surrounded
with the panoply of protective shields that are present in a criminal case. An
accused Member is judged by no specifically articulated standards, and is at the
mercy of an almost unbridled discretion of the charging body ... from whose21
decision there is no established right of review.
It is thus likely that a court would find, in a similar fashion to the above quoted
dicta of the Supreme Court in Brewster (regarding “no established right to review”
of a congressional disciplinary action), that the issue of an expulsion of a Senator by
the Senate (or a Representative by the House) is a non-justiciable “political question”
in which there exists a “textually demonstrable constitutional commitment of the
issue to a coordinate political department” of government.22 Unlike the factual
premise in the Powell exclusion, an expulsion of a Member for misconduct would
not appear to involve another, express constitutional provision which may be in
conflict with the exercise of such authority of the legislature;23 nor would such action
arguably impinge upon the constitutional rights of an individual.24 In fact, in Powell
v. McCormack, Justice Douglas in his concurring opinion noted the difference in
justiciability between that exclusion case based on “qualifications” other than those
established in another, express provision of the Constitution, as opposed to an
expulsion case based on misconduct, by noting that “if this were an expulsion case
I would think that no justiciable controversy were presented.”25
Although the authority and power of each house of Congress to expel appears
to be within the broad discretion of the institution, or as noted by the Supreme Court
in dicta “at the unbridled discretion of the charging body,” policy considerations, as
opposed to questions of power, may have generally restrained the Senate and the
House in exercising the authority to expel a Member when the conduct complained
of occurred prior to the time the individual was elected to be a Member of
21 United States v. Brewster, 408 U.S. 501, 519 (1972).
22 Powell v. McCormack, supra at 520-522; Baker v. Carr, 369 U.S. 186, 211, 217 (1962).
It should be noted that as to impeachment in the Senate, the Supreme Court found as a non-
justiciable “political question,” a challenge to the Senate’s impeachment proceedings under
Article I, Section 3, cl. 6. The Court in Nixon v. United States, 506 U.S. 224 (1993), found
that the claims of the federal judge-petitioner were nonjusticiable under the political
question doctrine and its separation of powers implications, as the Court found “a textually
demonstrable constitutional commitment of the issue to a coordinate political department.”
Since these are matters specifically assigned in the Constitution to the Senate, the Senate has
broad discretion in establishing the procedures that it uses, and the courts would not review
such procedures absent a conflict with another specific section of the Constitution.
23 In Powell v. McCormack, the House’s exclusion was found to contravene the
qualifications clause in Article I, Section 2, cl. 2.
24 Bond v. Floyd, 385 U.S. 116, 131 (1966).
25 395 U.S. at 553.
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Congress,26 or when the conduct complained of occurred in a prior Congress when
the electorate knew of the conduct but still reelected the Member to the current
Congress.27 On occasion, this restraint has been characterized, such as in dicta by the
Supreme Court, as evidence that “both Houses have distrusted their power to punish
in such cases” of past misconduct.28 The Court in Powell v. McCormack, supra, in
distinguishing the exclusion of Powell from an expulsion, observed that
congressional precedents have shown that “the House will not expel a member for
misconduct committed during an earlier Congress.”29 The Court noted specifically,
however, that it was not actually ruling on the House’s authority to expel for past
misconduct,30 and, as noted above, Justice Douglas, in his concurrence stated
specifically that “if this were an expulsion case I would think that no justiciable
controversy were presented,” since Douglas agreed with Senator Murdock of Utah
in a 1940 exclusion case that each house may “expel anyone it designates by a two-
thirds vote.”31
It should be noted that the principal congressional case cited by the Supreme
Court for its assertion in Powell v. McCormack that the House “will not expel” for
prior misconduct, the case involving Representative John W. Langley, involved many
other relevant considerations. Although the committee in that instance did question
the ability of the House to expel an individual for misconduct (resulting in a criminal
conviction) “prior to his election as a Member,” the committee also found that “the
House could not permit in its membership a person serving a sentence for a crime.”32
In resolving this apparent conflict, the committee reported to the House that
Representative Langley, whose conviction prior to his reelection was pending on
appeal, had agreed not to participate in House proceedings while the appeal was
pending, and had agreed to resign if his appeals were denied. After Langley’s
appeals were denied by the Supreme Court, he resigned his office.33
It should also be noted that many of the arguments opposed to proceeding
against a Member of the House for misconduct in a prior Congress were based on the
concept that the existing House should not take recognition of injuries to a past
26 Deschler’s Precedents, supra at Ch. 12, § 13, p. 176. In the House, see H.Rept. 94-1477,
at 2, In the Matter of Representative Andrew J. Hinshaw (1976). The House Committee on
Standards of Official Conduct recommended against expulsion of a Member, since the
Member’s conviction “while reflecting on his moral turpitude, does not relate to his official
conduct while a Member of Congress.”
27 See, e.g., discussion in S.Rept. No. 2508, 83rd Cong., 2d Sess. 20-23, 30-31, concerning
McCarthy censure; and H.Rept. 27, 90th Cong., 1st Sess. 26-27 (1969), recommending
seating and then censure of Representative Powell.
28 395 U.S. at 508-509, citing to the Rules of House, 90th Congress.
29 395 U.S. at 509, quoting the committee report in the expulsion case of John W. Langley.
30 395 U.S. at 507, n. 27; 510, n.30
31 395 U.S. at 553.
32 The expulsion case of John W. Langley, H.Rept. 30, 69th Cong., 1st Sess. (1925), see VI
Cannon’s Precedents, supra at § 238, p. 407.
33 Id.
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House of Representatives.34 The Senate, however, has consistently considered itself
to be a “continuing” body,”35 and thus injuries to the integrity and dignity of the
Senate in the past may not have the same character of being, arguably, against a
“different” institution or body. In the report on the McCarthy censure, the Select
Committee to Study Censure charges specifically stated the following:
Precedents in both the Senate and House for expulsion or censure for conduct
occurring during a preceding Congress may be found in Hinds (op. cit. 1275 to
1289). Precedents in the House cannot be considered as controlling because the36
to the popular will and election choice of the people.40 Justice Story, while noting
the necessity of expulsion of one who “disgrace[d] the House by the grossness of his
conduct,” noted that such power of the institution of the House to expel a duly-
elected representative of the people is “at the same time so subversive of the rights
of the people,” as to require that it be used sparingly and to be “wisely guarded” by
a two-thirds requirement.41 Similarly, Cushing noted that the power to expel “should
be governed by the strictest justice,” since in expelling a duly-elected Member
without just cause “a power of control would thus be assumed by the representative
body over the constituent, wholly inconsistent with the freedom of election.”42
In 1807 Senator John Quincy Adams discussed in a select committee report on
a proposed expulsion of Senator John Smith for his alleged part in the Aaron Burr
conspiracy, the issues of the authority of the Senate to expel a Member even after the
Senator’s indictment had been dropped. Although the indictment, as well as the
alleged misconduct, occurred subsequent to the time of Senator Smith’s election to
the Senate by the Ohio legislature, Senator Adams discussed in broad terms the
Senate’s authority to expel, finding that “By the letter of the Constitution the power
of expelling a Member is given to each of the two Houses of Congress, without any
limitation other than that which requires a concurrence of two-thirds.” This sole
limitation, that is, the two-thirds requirement, was in the opinion of the select
committee “a wise and sufficient guard against the possible abuse of this legislative
discretion.”43
The distinction between the “power” of the House of Representatives to expel,
and the judicious use of that power as a “policy” of the House, was cogently
explained in a House Judiciary Committee report in 1914:
In the judgment of your committee, the power of the House to expel or
punish by censure a Member for misconduct occurring before his election or in
a preceding or former Congress is sustained by the practice of the House,
sanctioned by reason and sound policy and in extreme cases is absolutely
essential to enable the House to exclude from its deliberations and councils
notoriously corrupt men, who have unexpectedly and suddenly dishonored
themselves and betrayed the public by acts and conduct rendering them unworthy
of the high position of honor and trust reposed in them....
But in considering this question and in arriving at the conclusions we have
reached, we would not have you unmindful of the fact that we have been dealing
with the question merely as one of power, and it should not be confused with the
question of policy also involved. As a matter of sound policy, this extraordinary
prerogative of the House, in our judgment, should be exercised only in extreme
40 See footnote 4 of this report, supra. Note also discussion of the infamous “Wilkes case”
in England, shortly before the time of the drafting of the United States Constitution. Powell
v. McCormack, supra at 532-535; May, supra at 107.
41 Story, supra at § 835.
42 Cushing, supra at § 625; Deschler’s Precedents, supra at Ch. 12, §13, p. 175.
43 II Hinds’ Precedents supra, at § 1264, p. 817. The expulsion vote to receive the required
two-thirds.
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cases and always with great caution and after due circumspection, and should be
invoked with greatest caution where the acts of misconduct complained of had
become public previous to and were generally known at the time of the
Member’s election. To exercise such power in that instance the House might
abuse its high prerogative, and in our opinion might exceed the just limitations
of its constitutional authority by seeking to substitute its standards and ideals for
the standards and ideals of the constituency of the member who had deliberately
chosen him to be their Representative. The effect of such a policy would tend44
not to preserve but to undermine and destroy representative government.
The power to expel is thus used cautiously when the institution of Congress
might be seen as usurping or supplanting its own institutional judgment for the
judgment of the electorate as to the character or fitness for office of an individual
whom the people have chosen to represent them in Congress.45 The principal manner
of dealing with ethical improprieties or misconduct of a Representative (Senators
were not at the time of the adoption of the Constitution, and until 1913, chosen
directly by the people, but were selected by the state legislatures) was intended by the
Framers to be, and has historically been, reliance upon the voters to keep their46
Members “virtuous” through the “restraint of frequent elections.” However, there
is no indication in the actual text of the Constitution or in the debates on the adoption
of Article I, Section 5, clause 2, that such limitation has been imposed, nor has any
judicial ruling on the authority or power of the Senate found an express or implied
limitation on the expulsion power, to reach only conduct that was not known to an
electorate prior to election or reelection of the Senator.
Practices and Precedents
Actual expulsions in the Senate (as well as in the House) have historically
concerned cases of perceived disloyalty to the United States Government,47 or of a48
violation of criminal statutory law which involved abuse of one’s official position.
However, it should be noted that the Senate Select Committee on Ethics, in 1995,
44 H.Rept. 570, 63rd Cong., 2d Sess. (1914), at VI Cannon’s Precedents, supra at § 398.
Emphasis added.
45 “Congress has demonstrated a clear reluctance to expel when to do so would impinge ...
on the electoral process.” Bowman and Bowman, supra at 1101.
46 Madison, The Federalist Papers, No. 57.
47 See Senate expulsions of Blount (1797), Mason, Hunter, Clingman, Bragg, Chestnut,
Nicholson, Sebastian, Mitchell, Hemphill, and Wigfall (1861), Breckinridge (1861), Bright
(1862), Polk (1862); House expulsions of Clark of Missouri (1861), Reid of Missouri
(1861), and Burnett of Kentucky (1861).
48 The Senate in 1981 considered the expulsion of Senator Harrison A. Williams, of New
Jersey, recommended by the Senate Select Committee on Ethics (S.Rept. 97-187, 97th
Cong., 1st Sess. (1981)), after the Senator’s conviction of bribery, illegal gratuities, conflicts
of interest and conspiracy in the so-called ABSCAM influence peddling probe. For House
practices, see modern expulsion of Representatives Myers (H.Rept. 96-1387 (1980)) and
Traficant (H.Rept. 107-594 (2002)), as well as committee recommendations of expulsion
for Representatives Lederer (H.Rept. 97-110 (1981)) and Biaggi (H.Rept. 100-506, (1988)),
after corruption convictions.
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recommended the expulsion of a Member for conduct which had not been the subject
of any criminal prosecution, but which involved allegations of an abuse of the
authority of the Senator’s office and position in making unwanted sexual advances
to women, enhancing his personal financial position, and for obstructing and
impeding the Committee’s investigation.49
In the United States Senate, 15 Senators have been expelled, 14 during the Civil
War period for disloyalty to the Union (one expulsion was later revoked by the
Senate),50 and one Senator was expelled in 1797 for other disloyal conduct.51
Although the Senate has actually expelled relatively few Members, and none since
the Civil War, other Senators, when facing a recommended expulsion for
misconduct, have resigned their seat rather than face the potential expulsion action.52
In the House of Representatives, five Members have been expelled — 3 during the
Civil War period for disloyalty, one in 1980 after conviction of bribery and
conspiracy in congressional office, and one Member in 2002 after his convictions for
bribery, receipt of illegal gratuities, and other corruption charges, while several other
Members, facing potential expulsion, resigned their offices prior to action by the full
House of Representatives.53
The Senate has demonstrated that in cases of conviction of a Member of crimes
that relate to official misconduct, that the institution need not wait until all of the
Senator’s judicial appeals are exhausted, but that the Senate may independently
investigate and adjudicate the underlying factual circumstances involved in the
judicial proceedings, regardless of the potential legal or procedural issues that may
be raised and resolved on appeal.54 In the last expulsion action regarding a sitting
Member of the Senate who had been convicted of a crime, the Senate Select
49 S. Rep. 104-137 (1995), Resolution for Disciplinary Action (re: Senator Packwood). The
Senator resigned from office prior to full Senate consideration.
50 Senators Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, Sebastian, Mitchell,
Hemphill, and Wigfall (1861), Breckinridge (1861), Bright (1862), Johnson (1862), and
Polk (1862). The expulsion order regarding Senator Sebastian was later revoked. United
States Senate Election, Expulsion and Censure Cases, 1793-1990, supra.
51 Senator William Blount of Tennessee, July 8, 1797, United States Senate Election,
Expulsion and Censure Cases, 1793-1990, supra at 13-15, Case 5.
52 See, for example, recommendation of expulsion of Senator Williams (S. Rep. No. 97-187,
supra), after the Senator’s conviction in the so-called ABSCAM influence peddling probe,
and Senator’s subsequent resignation prior to final Senate floor consideration. Note Riddick
and Fruman, Riddick’s Senate Procedure, S. Doc. No. 101-28, supra at 270. Additionally,
Senator Packwood resigned in 1995 after the Senate Select Committee on Ethics
recommended expulsion in S. Rep. 104-137 (1995).
53 Note modern expulsions of Representative Myers (H.Rept. 96-1387 (1980)) and
Representative Traficant (H.Rept. 107-594 (2002)). See generally, CRS Report RL31382,
Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of
Representatives, by Jack Maskell.
54 S.Rept. 97-187, supra at 10. The Senate Select Committee on Ethics stated that its
unanimous recommendation of expulsion “reflects its strong conviction that its own
determination of this matter, and that of the Senate, must be made independently of the
jury’s verdict,” or the outcome of the appeal.
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Committee on Ethics went forward with the disciplinary investigation and hearing
after the Senator’s conviction, and issued its report recommending expulsion prior
to the conclusion of the appellate procedure, but suggested that the Senate postpone
consideration of the committee’s report and recommendation of discipline until after
the Senator’s appeals were concluded.55 Subsequent to the Member’s conviction, and
up until the time the full Senate considered the Senate Select Committee on Ethics’s
recommendation of expulsion in this particular matter, the Senator who had been
convicted of the felony offenses continued to participate and vote on the floor of the
Senate. 56
It may be noted, generally, that as to precedents in the Senate concerning the
policy considerations and procedural decisions regarding disciplinary actions, as well
as precedents in the House of Representatives, that such precedents are, of course,
not necessarily binding on a subsequent Senate, but are given substantial weight and
consideration in the formulation of each Member’s consideration of the matter.57
Censure
The term “censure,” unlike the term “expel,” does not appear in the
Constitution, although the authority is derived from the same clause in the
Constitution at Article I, Section 5, clause 2, concerning the authority of each house
of Congress to “punish its Members for disorderly Behaviour.” The Standing Orders
of the Senate provide that the Select Committee on Ethics may recommend to the
Senate disciplinary action against a Member “including, but not limited to, in the case
of a Member: censure, expulsion, or recommendation to the appropriate party
conference regarding such Member’s seniority or positions of responsibility ....”58
A “censure” in the Senate has traditionally meant the “punishment” imposed by
the Senate when the full body formally disapproves of conduct or behavior of a
Member by way of the adoption, by majority vote, of a resolution expressing such
condemnation or disapproval. Under Senate Rules, no forfeiture of rights or
55 Although the Committee proceeded in its investigation, and found that it had a basis
independent of the judicial proceedings to pursue legislative discipline, the Committee
recommended “that the Senate proceed expeditiously to final disposition of the foregoing
resolution only when Judge Pratt has ruled on the aforesaid motions.” Senate Rep. No. 97-
187, supra at 11.
privileges automatically follows a “censure” by the Senate, but the individual
political party caucus or conference rules in the Senate may have relevance to party
and committee leadership positions.
The term “censure” is used to describe the formal action of the Senate adopting
a resolution expressing the body’s “censure,” “condemnation,” “denouncement,” or
general disapproval of a Member’s conduct even when the word “censure” is not
expressly included in the language of the resolution.59 In the two earliest Senate
censure cases cited by historians and parliamentarians, the resolutions finally adopted
by the Senate did not use any specific term of disapproval, such as “censure,”
“condemn,” or “denounce,” but merely stated the relevant findings and the
conclusion that Senator Pickering, in 1811, “committed a violation of the rules of this
body”;60 and that Senator Tappan, in 1844, was “guilty of a flagrant violation of the
rules of the Senate and disregard of its authority.”61 During the floor discussion of
the 1844 censure it was stated by a Member of the Select Committee examining the
matter that the use of no express word of disapproval in the previous censure
resolution of Senator Pickering in 1811 was “evidently designed as a mild form of
censure.”62
Senators Bingham of Connecticut, in 1929, and McCarthy of Wisconsin, in
1954, were “condemned” by the full Senate in a resolution; while the resolutions
adopted in the cases of Senators McLaurin and Tillman of South Carolina, in 1902,
and Thomas Dodd of Connecticut, in 1967, used the term “censure.” Senator
Talmadge in 1979, and Senator Durenberger in 1990, were “denounced” in the
resolutions adopted by the Senate.
Condemn
The term “condemn” has been used in two censure resolutions in the Senate, in
1929 and in 1954. It appears that no distinction of great import was made at the
times of those actions in using the word “condemn” in the censure resolutions, as
opposed to the term “censure,” and that the terms were seen at the times employed
as substantially synonymous.63
59 Riddick and Fruman, Riddick’s Senate Procedure, Precedents and Practices, S. Doc. No.
101-28, 101st Cong., 2d Sess. 270-273 (1992); note also S. Doc. No. 92-7, 92d Cong., 1st
Sess., Senate Election, Expulsion and Censure Cases from 1793 to 1972 (1972); Deschler’s
Precedents, H. Doc. No. 94-661, 94th Cong., 2d Sess., Ch. 12, §16, at 193-194, n.10,
§§16.2, 16.3.
60 Censure of Timothy Pickering of Massachusetts, S. Journal, 11th Cong., 3rd Sess., pp.
535, 536 (January 2, 1811).
In the censure of Senator Joseph McCarthy from Wisconsin, the select
committee considering the matter recommended in its report that on two of the
charges investigated the “Senator from Wisconsin, Mr. McCarthy, should be
censured,”64 and reported out favorably the resolution referred to the committee
which provided that the conduct of the Senator “is hereby condemned.”65 In the floor
consideration of the resolution, the Chairman of the Select Committee to Study
Censure Charges, Senator Watkins of Utah, was questioned in a colloquy by another
member of the Select Committee concerning the uses of the terms “censure” and
“condemn”:
Mr. CASE. Let me ask the Senator from Utah how he refers to the adoption
of a censure resolution which would have for its main substance section 1, which
uses the word “condemn,” and when he now proposes that section 2 be modified
by including the words “and condemn”? How does the Senator from Utah think
that modification will modify the censure proposed in Section 2?
Mr. WATKINS. The modification strikes out the word “censure.”
Mr. CASE. Yes; but then we come to the words “and condemn” in section
1, although the Senator from Utah still refers to the resolution as a censure
resolution.
Mr. WATKINS. That is a difference of semantics. Some persons believe
that “condemn” is a stronger word than “censure”; and some persons believe that66
“censure” is a stronger word than “condemn.” I do not know which is which.
The Select Committee and its Chairman in the McCarthy censure did not
officially distinguish between the meaning of the two terms employed. However, it
is clear that at least one Member of the Senate at the time felt that the term
“condemn” was the stronger term, and that the Senator was not necessarily dissuaded67
from that perception by the Select Committee Chairman. At present, it may be
argued that the use of the verb “condemn” in a censure resolution, although not
officially distinguished from using any other word in such resolution, may be
perceived to be a somewhat stronger disapproval than merely using the term
“censure,” based in large part on the feelings associated with the last Senator to be
63 (...continued)
propose by my vote to censure those acts” (71 Cong. Rec. 5130, November 4, 1929, Mr.
Walsh). One of the main contentions in the Bingham censure appeared to concern
substituting the term “disapproved” for “condemned.” As noted by Senator Pittman: “I
think the charge here is simply a condemnation of what he did. ... You may use the word
`disapprove’ or you may use the word ‘condemn’; but what is the difference between
disapproving conduct and condemning conduct? The only difference that I see is that
‘condemning’ is a stronger word than ‘disapproving.’” 71 Cong. Rec., supra at 5120, 5121.
64 S.Rept. 2508, supra at 67
65 S.Res. 301, 83rd Cong., 2d Sess.
66 100 Cong. Rec. 16369, December 2, 1954.
67 Mr. WELKER. Being a practitioner of law, as is the Senator from Utah, he certainly
knows that a man is never censured to death. On the contrary, a man is condemned to death.
That indicates the difference between the two words.
Mr. WATKINS. Very well; I accept that effort on the part of the Senator from Idaho
to clarify the difference between the meaning of the two words. 100 Cong. Rec. 16369,
December 2, 1954.
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“condemned” for conduct in a censure resolution, the late Senator Joseph McCarthy.
In a later Senate consideration of a censure resolution, the Chairman of the then
Senate Select Committee on Standards and Conduct, Senator Stennis of Mississippi,
stated that he had believed that the term “condemn” was a harder and a more
“severe” term than “censure.”68
Denounce
The term “denounce” has been used in two relatively recent censure resolutions
in the Senate. As discussed above, although distinctions were intentionally drawn
in the Herman Talmadge case between using the word “denouncement” in the
resolution on the one hand, and the use of the terms “censure” or “condemnation” on
the other, historians and parliamentarians consider the disciplinary action voted in the
Talmadge case, where the full Senate formally “denounced” his conduct in a
resolution, as a “censure” of Senator Talmadge.69
The Senate Select Committee on Ethics in the Talmadge matter noted in its
report that it was using the term “denounce” in the resolution to distinguish the facts
in the Talmadge case “from those earlier matters in which the Senate ‘censured’ or
‘condemned’ a Member” so that the Committee may express “its judgments and
recommendations ... with words that do not depend on analogy to dissimilar
historical circumstances for interpretation.”70 The Committee report did not
expressly explain why the Talmadge matter was distinguishable from past matters,
nor if it considered the term “denounce” as stronger or weaker than the terms
“censure” or “condemn.” In the additional views of Senator Schmitt in the Senate
report, however, the Senator argued that the terms are essentially “equivalent,” but
that the term “denounce” was employed because only a “gross neglect” of duty of a
Member towards the administration of his office affairs was found, while the actual
wrongdoing was perpetrated by staff:
Such words as “reprehensible” and “denounced” have no legal or historic
precedents for their use as do “censured” and “condemned”. However, they
should by viewed now by history as equivalent in meaning to “censured” but
applied to special cases where the financial duties of a senatorial office have
been subject to gross neglect and where years of illegal activities by subordinates
have been overlooked, if not encouraged.
***
Thus, even though the Committee avoided the use of the word censure and
even though the general historical precedents are strongly [sic], it none the less
68 “We debated, at considerable length, the use of the word `censure’ or the word `condemn.’
Speaking first for myself, I was convinced that the historic term and the proper term to suit
these facts was the word `censure’ rather than `condemn.’ I thought that the word `censure’
was not as hard a word, not as severe a word, as the word `condemn.’” 113 Cong. Rec.
16979 (June 22, 1967).
applied words defined in terms of “censure” to the misconduct of Senator71
Talmadge.
From the full Senate consideration of the matter, it appears that a common
opinion was that the term “denounce” was employed to recognize that there were
“mitigating” circumstances involved in the case, and to recognize that it had not been
concluded by the committee that the improprieties were engaged in by the Senator
willfully and with actual knowledge, and thus the term “censure” would not be
used. 72
The Senate Select Committee on Ethics in its report in the matter of Senator
Durenberger did not state an express reason or justification for using the term
“denounce” rather than “censure” or “condemn” in the resolution it recommended for
adoption, although the special counsel’s report to the Committee suggested that the
precise verb in a censure resolution is not as important as the Committee’s
characterization of the conduct in a resolution which is then formally adopted by the
full Senate.73 During the Senate consideration of the resolution a member of the
Select Committee on Ethics, Senator Lott of Mississippi, noted that an amendment
offered during Committee procedures to substitute the term “censure” for “denounce”
was defeated, and it was the Senator’s opinion that a “denouncement” was intended
to be a lesser term of disapproval than a “censure” because of the mitigating74
circumstances and the lack of venal intent in the case.
Questions concerning the meaning of the term “denounce” employed in the
resolution were directed to the Chairman of the Select Committee on Ethics, Senator
Heflin of Alabama. The Chairman of the Committee, in an explanation somewhat
similar to the one given by the Chairman of the Select Committee to Investigate
Censure Charges in the McCarthy censure, explained that the actual term employed
in the censure resolution voted on by the full body was a matter of semantics and
personal interpretation, and that the action of the full Senate formally adopting a
resolution using the term “denounce” was “within the broad parameters of the word
`censure’”:
71 S.Rept. No. 96-337, supra at 148-149.
72 125 Cong. Rec. 27768, 27785,-27786, 27789 (October 11, 1979). Note, for example,
comments of Senator Hollings: “I know the gentleman discussed what word to use at length,
and they did save my good friend from censure, and instead recommended that he be
denounced.” Id. at 27785.
73 S.Rept. No. 101-382, at 106 (1990).
74 “Ezra Pound once spoke of `language charged with meaning.’ I think the commitment to
recommend denouncement rather than censure was for a reason.
Although our rules mention only censure and expulsion, this history of the Senate
shows that there are in effect different levels of punishment. Past cases have resulted in
what amounts to a letter of reproval by the committee as well as denouncement,
condemnation, censure and expulsion by the full Senate.
In this case the committee chose denouncement instead of censure, largely because,
I think, of the mitigation that was present and because, as the defense counsel emphasized
in our public hearings, there was no venal intent.” 136 Cong. Rec. S 10564 (daily ed.), July
25, 1990.
The denouncement terminology originated in the case of a former Senator
from Georgia. The Parliamentarian, as I understand it, considered
“denouncement” to be within the parameters of censure. I think some people in
the instance of a Georgia Senator felt that the word “denouncement” was weaker
than the word censure.
Some, on the other hand, felt that it was stronger. I think it is more in the
eyes of the beholder as to how you might view it. ...
... The major aspect of this is that the Senate as a whole acts. It acts to show its
displeasure; it acts to show its disapproval in strong language, whether the
language be denouncement, censure, or in one case condemnation. ...
***
I think it is up to each individual to give whatever meaning and connotation
he may wish. I would think that it falls within the broad parameters of the word75
“censure.”
Grounds For Censure
The Constitution, in providing that either house of Congress may “expel” a
Member by a two-thirds majority, does not specify the reasons for such expulsion,
but does in that same provision state that either house of Congress may “punish its
Members for disorderly Behavior.” Article I, Sec. 5, cl. 2. Some early commentators
thus felt that the authority to “punish” a Member by way of censure or condemnation
was thus expressly limited, unlike expulsion, to cases concerning disorderly or unruly76
behavior or conduct in Congress, that is, conduct which disrupts the institution.
The authority to discipline by way of censure, however, has come to be
recognized and accepted in congressional practice as extending to cases of
“misconduct”, even outside of Congress, which the Senate or House finds to be
reprehensible and to reflect discredit on the institution, and which is, therefore,
worthy of condemnation. As stated in S.Rept. 2508, 83d Cong., 2d Sess. 22 (1954)
by the Senate Select Committee to Study Censure Charges:
It seems clear that if a Senator should be guilty of reprehensible conduct
unconnected with his official duties and position, but which conduct brings the
Senate into disrepute, the Senate has the power to censure.
The House of Representatives has similarly taken a broad view of its authority
to discipline its Members by way of expulsion or censure. In the 63rd Congress the
House Judiciary Committee described the power of the House to punish for
disorderly behavior as a power which is “full and plenary and may be enforced by
summary proceedings. It is discretionary in character ... restricted by no limitation
except in case of expulsion the requirement of the concurrence of a two-thirds
vote.”77 In the report on Representative Adam Clayton Powell, the House Select
Committee described censure cases as follows:
75 136 Cong. Rec. S10568-69 (daily ed. July 25, 1990).
76 Note, for example, discussion in 29 Syracuse Law Review, supra at 1089 - 1091, citing
Rawle, View of the Constitution of United States 46-47 (2nd ed. 1829).
77 H.Rept. 570, 63rd Cong., 2d Sess. (1914).
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Censure of a Member has been deemed appropriate in cases of a breach of
the privileges of the House. There are two classes of privilege, the one, affecting
the rights of the House collectively, its safety, dignity, and the integrity of its
proceedings; and the other, affecting the rights, reputation, and conduct of
Members, individually, in their representative capacity....
Most cases of censure have involved the use of unparliamentary language,
assaults upon a Member or insults to the House by introductions of offensive
resolutions, but in five cases in the House and one in the Senate [as of 1969]
censure was based on corrupt acts by a Member, and in another Senate case
censure was based upon noncooperation with and abuse of Senate committees.
***
This discretionary power to punish for disorderly behavior is vested by the
Constitution in the House of Representatives and its exercise is appropriate
where a Member has been guilty of misconduct relating to his official duties,
noncooperation with committees of this House, or nonofficial acts of a kind78
likely to bring this House into disrepute.
The authority and grounds for censure, under the express Constitutional
authority of the Senate, at Article I, Section 5, clause 2, as well as under the Senate’s
own Rules79 and precedents, thus extend to misconduct or improprieties which may
or may not violate an express statute or a particular written rule of ethical conduct.
Even when not a violation of a particular law or rule, the Senate has censured
Members for conduct when found contrary to “acceptable norms of ethical conduct
in the Senate,” contrary to “good” or “accepted morals” and “senatorial ethics,” when
found to “derogate from the public trust expected of a Senator,” and/or for
“reprehensible” conduct which brings the Senate into “dishonor and disrepute.”80
It should be noted that prior to 1968 there were no written Senate ethics rules.
Upon the drafting of a code of conduct in the Senate Rules for the first time in 1968,
it was made clear that the drafting and existence of such an express, written code
would not preempt nor supersede the existing, unwritten standards or norms of
ethical behavior against which a Senator’s conduct has been and may always be
78 H.Rept. 27, supra at 24-26, 29.
79 Standing Orders of the Senate, Senate Manual, Section 79, derived from S.Res. 338, 88th
Cong., 2d Sess., Sec. 2(a) (1964), as amended.
80 Note, for example, Senate approval of “resolution of censure (S.Res. 146 [71st Cong.
1929]) condemning Senator Bingham” for conduct which is “contrary to good morals and
senatorial ethics and tends to bring the Senate into dishonor and disrepute,” S. Doc. No. 92-
7, supra at case 160; adoption of S.Res. 301, 83rd Congress, censuring Senator McCarthy
for conduct which was (Sec. 1) “contrary to senatorial traditions” and (Sec. 2) “contrary to
senatorial ethics and tended to bring the Senate into dishonor and disrepute, to obstruct the
constitutional processes of the Senate, and to impair its dignity”; adoption of S.Res. 112,
90th Cong., censuring Senator Dodd for a pattern of conduct which was found “contrary to
accepted morals, derogates from the public trust expected of a Senator and tends to bring
the Senate into dishonor and disrepute”; S.Res. 311, 101st Cong., denouncing Senator for
a pattern of conduct found “reprehensible” and which “brought the Senate into dishonor and
disrepute,” based on violations of statutes, rules, and “acceptable norms of ethical conduct.”
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judged.81 The earlier resolution in 1964 establishing and authorizing the Select
Committee on Standards and Conduct (now the Select Committee on Ethics) was
expressly intended to give to and to continue within that committee that portion of
the Senate’s traditional authority and jurisdiction to investigate, make findings, and
report to the full body for consideration matters concerning official “misconduct” of
Members, as well as violations of specific rules, codes, or statutes relating to official
duties.82
The Senate has “censured” Members for violating orders of secrecy of
documents in their possession; for fighting in the Senate; for allowing a lobbyist with
interests in particular legislation to be on one’s staff and on a committee considering
such legislation, with access to the secret meetings and considerations of the
committee; for non-cooperation and abuse of investigating committees of the Senate;
and for financial irregularities concerning contributions, official expenses, and
outside income.
Reprimand
There is no precedent in the Senate for the full Senate to vote a resolution
“reprimanding” a Member for misconduct, nor for any committee to recommend that
the Senate “reprimand” a Senator, although such an action has been considered by
the Senate and by at least one committee to which a disciplinary case was referred.
In the censure case of the late Senator Thomas Dodd, Senator Tower introduced an
amendment to substitute the word “reprimand” for that of “censure” in the83
resolution. Senator Tower argued that this “would give us the opportunity to
express our displeasure, our disapproval, and our disassociation, but at the same time
avoid the severity of censure, which ... is one of the most severe penalties that we
could impose.”84 Senator Stennis, the Chairman of the Select Committee on
Standards and Conduct, argued against using the term “reprimand,” contending that
81 Note preamble to S.Res. 266, 90th Cong., Standing Orders of the Senate, §79.6, and
Senate consideration of Code of Conduct at 114 Cong. Rec. 6833 (March 18, 1968),
comments of the Chairman of the Select Committee, Senator Stennis: “We do not pretend
to displace those backgrounds of precedents concerning standards and trust and the fiduciary
relationship of the Senate with the people and a Senator’s obligations. We do not try to
write a full code of regulations. However, we do set forth in the very beginning that our
effort is merely to add rules and not to replace that great body of unwritten but generally
accepted standards that will, of course, continue in effect.”
82 In consideration and passage of S.Res. 338, 88th Cong., the Senate adopted a substitute
proposal by Senator John Sherman Cooper to establish a permanent Select Committee with
authority, as explained by Senator Cooper, to “receive complaints of illegal and unethical
conduct .. and then if required, recommend to the Senate proper disciplinary action.” 110
Cong. Rec. 16930 (July 24, 1964). As stated by a supporter of the substitute measure,
“unlike the resolution in its original form, ... the proposal would not be limited to alleged
violations of Senate rules, but, it would take into account all improper conduct of any kind
whatever.” 110 Cong. Rec., supra at 16933 (Senator Case).
83 113 Cong. Rec. 16978 (June 22, 1967).
84 Id. at 16979.
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term had no historical context in Senate procedure and thus was without meaning in
the Senate, and arguing that the term “censure” was appropriate to the facts and was
less severe than using the term “condemn”:
Mr. STENNIS. ... The matter was given as careful consideration as our capacity
on the subject permitted; and we found that, uniformly, the legislative history of
the United States had tended, for serious matters, always to use the word
“censure” or the word “condemn”.
We found that there was some precedent, in the House of Representatives,
in connection with the use of the word “reprimand,” after passing a resolution of
censure, to require the Member to present himself at the bar of the House and be
publicly reprimanded there by the Speaker.
***
[I]t has been the custom in the House of Representatives in a censure resolution
to require the Member of the House, if he is so censured by resolution, to come
down before the bar and be publicly “reprimanded” by word of mouth by the
Speaker. However, that has never been done in the Senate. We did not like the
idea of doing that.
***
Members of the Senate, I will put this in this way, as to what we found as
to the meaning of “reprimand” in legislative parlance. It just does not mean
anything. It means what you might call just a slap on the wrist. It does not carry
any weight.
***
We looked and looked and looked, and we feel certain that our research was
complete, and therefore we totally rejected, for the reason I have given, the mild
legislative word “reprimand,” which has no meaning or means nothing more than
just a disapproval, and put in the word “censure,” which we thought was the
mildest of the words that have a legislative meaning, and would carry the idea of85
the Senate taking a stand with reference to the matter.
In the case of Senators Tillman and McLaurin who were “censured” by the full
Senate in 1902 for fighting on the floor of the Senate, the Committee to whom the
matter was referred considered the options for the Senate, including a “reprimand”
of the Members which it considered “only a more formal reiteration [of an earlier
contempt vote and] .. not sufficiently severe,” found that the conduct should be
“condemned” by the Senate and recommended a resolution which “censured” the
Members. The Committee explained:
The Senate may punish the Senators from South Carolina by fine, by
reprimand, by imprisonment, by suspension by majority vote, or by expulsion
with the concurrence of two-thirds of its Members.
The offense is well stated in the majority report. It is not grave enough to
require expulsion. A reprimand would be too slight a punishment. The Senate
by a yea-and-nay vote has unanimously resolved that the said Senators are in
contempt. A reprimand is in effect only a more formal reiteration of that vote.86
It is not sufficiently severe upon consideration of the facts.
85 113 Cong. Rec. 16979, 16984 (June 22, 1967).
86 II Hinds’ Precedents, supra at §1665, pp. 1140-1142.
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Prior to the 1970s in the House of Representatives, although there were some
inconsistencies,87 the terms “reprimand” and “censure” were often considered
synonymous and used together in a resolution. In 1921, for example, a resolution
adopted by the House instructed the Speaker to summon Representative Blanton of
Texas to the bar of the House “and deliver to him its reprimand and censure”.88 More
recently, however, there has come to be a distinction in the House whereby it is
considered that a “reprimand” involves a lesser level of disapproval of the conduct
of a Member than that of a “censure”, and is thus a less severe rebuke by the
institution.89 Procedurally in the House, a “censure” resolution will generally instruct
the Member to go to the well of the House and for the Speaker of the House to read
the resolution as a verbal castigation of the Member. In the case of a “reprimand,”
however, the resolution is merely adopted by a vote of the House.90
Such procedures are not relevant to the Senate which merely adopts a censure
resolution and does not require a Member to “go to the well” for a verbal rebuke.91
A resolution which is adopted by a formal vote of the Senate using the word
“reprimand” would thus have the same effect and be governed by the same
procedures as a “censure” in the Senate, and might thus possibly be considered as a
“distinction without a difference” in the Senate and, technically, a form of “censure”
as have been the recent “denouncements” in the Senate. A resolution which uses the
word “reprimand” in the Senate, although without historical precedent, might,
however, be publicly perceived as similar to the modern House practice, that is, a
minor rebuke, and may arguably be seen by the public as a lesser form of institutional
disapproval or discipline than would the use of the words “condemn,” “censure,” or
“denounce.”
Although not a disciplinary action employed by the full Senate, the Select
Committee on Ethics may issue, and has issued a “reprimand” or other similar form
of rebuke, in a report or in a letter to a particular Member, which is not voted upon
by the full Senate. The Senate Select Committee on Ethics issued such a
“reprimand” in a report concerning Senator Cranston and the so-called “Keating
Five” investigations in 1991. The Committee found that the Senator’s conduct
87 Note II Hinds’ Precedents of the House of Representatives, Sec. 1257, 47th Cong., 1st
Sess. 1882; II Hinds’, supra at Sec. 1666, 39th Cong., 1st Sess. (1866).
88 VI Cannon’s Precedents of the House of Representatives, §236, 67th Cong., 1st Sess.
89 Deschler’s Precedents, Ch. 12, §16, p. 196 (“a somewhat lesser punitive measure than
censure”); see also Cushing, supra at 266-269, for historical context.
90 Deschler’s Precedents, supra.
91 In 1844 the resolution of censure for Senator Tappan of Ohio had originally stated that
the Senator has “incurred the just censure of the Senate, and shall receive its reprimand
through the Presiding Officer, who is hereby directed to give the same in the presence of the
Senate.” S. Journal, 28th Cong., 1st Sess. App. 441 (1844). After debate in executive
session, however, the resolution finally adopted merely stated that the Senator “has been
guilty of flagrant violation of the rules of the Senate and disregard of its authority.” S.
Journal, supra; Executive Journal, 28th Cong., 1st Sess., 271-272 (May 10, 1844). No
precedent for requiring the Presiding Officer to give a verbal rebuke or “reprimand” to a
Senator, either before the Senate or standing in his place in the Senate, has been found.
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“deserves the fullest, strongest and most severe sanction which the Committee has
the authority to impose” and therefore the Committee “does hereby strongly and
severely reprimand” the Senator.92 The Committee reprimand was reported to the
full Senate, and discussion was taken on the Senate floor regarding the Committee’s
action, but no formal Senate action was required or taken by the full body. Under the
current rules governing the Senate Select Committee on Ethics, the Committee may
“dispose of” an ethics matter by issuing a “letter of admonition” after a preliminary
inquiry (or after an adjudicatory review) if the Committee determines that a violation
is “inadvertent, technical, or otherwise of a de minimis nature,” and that such public
or private letter “shall not be considered discipline.”93
Senate Precedents
Expulsion
1. William Blount of Tennessee. July 8, 1797.
3. John C. Breckinridge of Kentucky. December 4, 1861.
4. Jesse D. Bright of Indiana. February 5, 1862.
5. Waldo P. Johnson of Missouri. January 10, 1862.
6. Trusten Polk of Missouri. January 10, 1862.
1. Thomas Pickering of Massachusetts. January 2, 1811.
2. Benjamin Tappan of Ohio. May 10, 1844.
3. John L. McLaurin and Benjamin R. Tillman of South Carolina. February 28,
1902.
4. Hiram Bingham of Connecticut. November 4, 1929.
5. Joseph R. McCarthy of Wisconsin. December 2, 1954.
bring formal charges against his accuser, and then challenged the investigation as
designed to expel him “for having exposed Communists in Government.” Although
the subcommittee eventually made no disciplinary recommendation, it criticized the
Senator for deliberately setting out “to thwart the investigation.” In 1954 a resolution
to censure Senator McCarthy was introduced and amended to include 46 separate
counts of alleged misconduct. S.Res. 301, 83rd Cong., 2d Sess. The Select
Committee to Study Censure examined censure in five categories of charges
including contempt of the Senate and obstruction of the legislative process. S.Rept.
2508, 83rd Cong., 2d Sess. After floor debate, the full Senate voted to “condemn”
6. Thomas J. Dodd of Connecticut. June 23, 1967.
7. Herman E. Talmadge of Georgia. October 11, 1979.
Senate into dishonor and disrepute and is hereby denounced.” The Senate adopted
S.Res. 249 by a vote of 81 - 15.
A “denouncement” was expressly recommended because the Committee felt that
the facts were “distinguishable from those of earlier matters in which the Senate
`censured’ or `condemned’ a Member”, and that the judgment of the Committee and
the Senate concerning such conduct could be made using “words that do not depend
on analogy to dissimilar historical circumstances for interpretation.” S.Rept. 96-337,
supra at 18. The action of the Senate formally adopting a resolution disapproving of
conduct by way of “denouncing” the Member’s conduct, is categorized by historians
and parliamentarians in the Senate as a “censure” of that Member.96
8. David F. Durenberger of Minnesota. July 25, 1990.
Conclusion
Expulsions in the United States Senate, as well as in the House of
Representatives, have been generally reserved for the most serious misconduct of a
Member of Congress, historically concerning disloyalty to the government, or the
conviction (or evidence) of an offense involving official corruption and/or the abuse
of one’s official position in Congress.
Other than expulsion, a formal “censure” by the Senate is the strongest
statement of disapproval and rebuke that the Senate, as an institution, invokes upon
one of its Members. It may be possible that in addition to a formal censure the
Senate may also require financial restitution from a Member, limit a particular
privilege of a Member, or under current practice, recommend to the appropriate party
conference the diminution of seniority status of a Senator. Although there is no
specific disability that automatically follows a censure by the Senate, the public
reprobation and formal rebuke by one’s peers in the Senate may have arguably
contributed to the unsuccessful reelection efforts of Senators subject to censure in98
recent times.
The action of the full United States Senate formally adopting, by a vote
requiring the majority of Members present and voting, a resolution disapproving of
a Senator’s conduct is considered by parliamentarians and historians as a “censure”
of that Member. There is no precise, technical requirement concerning the required
words in a resolution of censure, nor is there an official “hierarchy” or ranking of
terms employed in such a resolution. The Senate has thus “censured” its Members
by way of a resolution “condemning”, “censuring” or “denouncing” the Member or
the conduct of the Member, as well as by way of resolutions which do not include
any express term of opprobrium. In practice and perception, however, although there
is no official ranking or officially recognized hierarchy of terms employed, it may be
contended that the connotation of the verb “condemn” in a censure resolution is more
severe than the term “censure,” based in large part on the association of the term
“condemn” with the discipline imposed by the Senate on the late Senator Joseph
McCarthy; while the connotation of the term “denounce” in a censure resolution may
be one of a less severe form of “censure” because of extenuating or mitigating
circumstances that have been recognized in past disciplinary actions adopting that
particular term.
The authority and grounds for censure extend to misconduct which may or may
not violate an express statute or a written Senate ethics rule. The full Senate has thus
censured Members when the conduct was found to be contrary to “acceptable norms
of ethical conduct in the Senate”, contrary to “good” or “accepted morals” and
98 Senator Bingham, censured in 1929 was an unsuccessful candidate for re-election in 1932;
Senator McCarthy, censured in 1954, died in 1957 while serving out his term of office;
Senator Thomas Dodd, censured in 1967, was an unsuccessful candidate for re-election in
1970; Senator Talmadge, denounced in a censure resolution in 1979, was defeated for re-
“senatorial ethics”, to “derogate from the public trust expected of a Senator”, and/or
to be “reprehensible” conduct which brings the Senate into “dishonor and disrepute.”
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