Elections and Qualifications
While the balance of Article I further clarifies the duties and requirements of Congress, three of those sections -- Sections 4, 5 and 6 -- are often overlooked.
Taken together, they form an important part of the Constitution's support of the fair election and maintenance of an independent, responsible national legislature, free from political or economic intimidation.
Section 4 of Article II is a prime example. One portion of this clause gives states the authority to set their own time for the election of Senators and Representatives -- traditionally the first Tuesday after the first Monday in November.
But the section also gives Congress the authority to "make or alter such Regulations, except as to the Places of choosing Senators." This clause has been particularly useful in protecting the rights of citizens voting in congressional elections. Such intervention was established in 1842, when Congress passed a law requiring the election of Representatives by district. Prior to passage of this measure, many states had unfairly tried to increase their influence in Congress by electing all of their Representatives on a general ticket.
Some other states experienced ongoing deadlocks within their state legislatures regarding the election of Senators. Congress moved to protect the rights of the people in this regard in 1866, when it forced state legislatures to meet in joint session on a specified day, and every day thereafter, until a Senator was chosen.
A more comprehensive federal statute dealing with the issue of state elections was adopted by Congress a few years later as part of the Reconstruction legislation which followed the Civil War. Under the terms of the Enforcement Act of 1870 and several related measures, such activities as false registration, bribery, voting without a legal right, reporting false voting returns and interference with election officials, as well as neglect of duty by those election officials, were all made federal offenses.
At the same time, federal judges were given the authority to designate persons to monitor voter registration sites and polling places, with power to challenge any person attempting to register or vote unlawfully, to witness the counting of votes, to identify by their signatures the registration of voters and to certify the accuracy of election tally sheets.
After 24 years of use, Congress replaced several sections of this legislation, but left in effect those generally dealing with civil rights. More recently, the landmark civil rights legislation passed during the early 1960s has expanded federal power to protect voters from intimidation or interference. Such protection now includes the authority of the Attorney General to obtain injunctive relief on behalf of voters, and the requiring of election officials to preserve federal election records.
In efforts to protect the rights of voters and guarantee fair elections, Congress may also adopt the statutes of the states and enforce them by its own sanctions. Accordingly, Congress may punish a state election officer for violating his duty under a state law governing congressional elections. It may also punish federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a state primary election. This right of the national government to regulate congressional elections (including the expenditures of candidates) conducted under state law has been squarely recognized by the nation's courts.
In drafting this section of the Constitution, the framers were not content to assume that equitable elections would guarantee adequate representation in Congress. More than once they had been the British king or a colonial governor both assemble and dismiss the representatives of the people according to his whims. In order to avoid such a condition the framers made it explicit that Congress should meet regularly -- "at least once in every year" -- so that the right of the people to govern themselves would be safeguarded.
The original provision of Section 4 mandating that Congress assemble on the first Monday in December was altered by passage of the Twentieth Amendment in 1933. Since that time, Congress has convened on the third day of January.
The next portion of Article II -- Section 5 -- gives both houses of Congress the authority to establish their own rules or procedures, but also outlines a number of restrictions on those powers. For example, while giving each chamber the power to judge the election and qualifications of its members, the Constitution also requires that a quorum consisting of a majority of each house be present in order to conduct official business.
In assessing the qualifications of members and their election to Congress, each house follows procedures similar to a court. For example, it has the power to compel attendance of witnesses, including the ability to issue a warrant for his or her arrest in order to procure testimony. Congress may also punish perjury committed in testifying before a notary public in regard to a contested election.
As has been seen, Congress also has the power to refuse to seat a member because of a failure to meet certain requirements. Such action does not, however, deprive the citizens of that particular state from full representation in Congress.
Congress likewise has the constitutional authority to punish its members "for disorderly behavior," and may, upon a two-thirds vote of the chamber in question, expel a member. In fact, the Supreme Court has asserted that "the right to expel extends to all cases where the offense is such as in the judgment of the -chamber- is inconsistent with the trust and duty of a Member." Under this broad definition, either chamber may expel a member for an offense, irregardless of whether his or her actions constitute an actual statutory violation.
Having granted Congress rather broad authority over its members, the Supreme Court in 1892 instituted some checks upon this power. In this case, United States v. Ballin, the Court established guidelines for the implementation of congressional rules in order to protect other basic rights guaranteed within the Constitution. The Court ruled, for example, that Congress may not "ignore constitutional restraint or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained.'' Nevertheless, the Court said, "within these limitations all matters of method are open to the determination of the House . . . The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal."
The keeping of an official journal of congressional proceedings is also mandated by Section 5. The objective of this provision was to insure that the activities of Congress remained open to public scrutiny. In addition, the keeping of an official journal has provided an accurate record of congressional activity throughout the years.
This journal, now known as the Congressional Record, was first set up as the Register of Debates. From 1837 to 1873 it was known as the Congressional Globe after which it adopted the current title.
The organization and authority of Congress is further explored in Section 6 of Article II. This section sets up the compensation for Representatives and Senators, offers them a degree of protection for actions taken while conducting official business and prohibits the holding or assuming of other federal offices while serving as a member of Congress.
As was recalled earlier in this series, those in attendance at the 1787 constitutional convention were greatly concerned with the divisiveness among the states. One portion of Section 6, which provides that Senators and Representatives be paid by the national treasury, was a direct result of this concern. The framers felt that payment from the national government would avoid dependence upon the individual states for the members' livelihoods. In this way, it was believed, each member of Congress would be better able to vote his conscience free from undue economic influence.
Practice has established that a member of Congress who receives his certificate of admission and is seated, allowed to vote and serve on committees is entitled to the salary which accompanies such service -- even though the chamber may later declare the seat vacant for a violation of election laws. The person subsequently chosen to fill the vacancy is entitled only to the salary from the time the compensation of his "predecessor" ceased.
Another aspect of Section 6, that providing a privilege from arrest for members of Congress, has long been one of the more misunderstood portions of the Constitution. Rather than giving Representatives and Senators free license with the law, the clause has been interpreted to apply only as an exemption from arrests in civil suits, which were still common in this nation at the time the Constitution was drafted. It does not apply to service of process in either civil or criminal cases, nor does it apply to arrest in any criminal case. The portion of the clause noting an exemption from privilege for "treason, felony or breach of the peace" has been construed by the Supreme Court to withdraw all criminal offense from the protection of this privilege.
The protection that is provided by this portion of Section 6 is not limited to words spoken in debate, but also applies to written reports, to resolutions offered, to the act of voting and to all things generally done by a member of Congress in relation to the performance of his or her duty.
The reasons for this privilege, and a rather broad interpretation of this privilege itself, are found in Kilbourn v. Thompson, an 1881 Supreme Court decision. In that ruling, the Court quoted with approval the following excerpt from an 1808 Massachusetts case, Coffin v. Coffin:
"These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haraunging in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office.
"And," the opinion continued, "I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and against their rules. I do not confine the member to his place in the House; and I am satisfied that there are cases in which he is entitled to this privilege, when not within the walls of the representatives' chambers."
Justice Felix Frankfurter, in the 1951 case of Tenney v. Brandhove amplified this opinion when he wrote, "Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators."
The third main feature of Section 6 prohibits members of Congress from holding any other federal office, or moving from Congress to either a newly-created position or one in which the compensation has been increased during his or her term of office.
According to legislative precedent, visitors to academies, regent, directors and trustees of public institutions, as well as members of temporary commissions who receive no compensation, are not officers of the U.S. government within the definition of Section 6. Likewise, government contractors and federal officers may be seated in Congress, provided that they resign their previous position before presenting their credentials for congressional service.
However specific this provision may be, there have been several attempts to work around these restrictions. For example, in 1909, after having increased the salary of the Secretary of State, Congress was forced to reduce it back to its previous level so that a member of the Senate at the time the pay increase was approved could become eligible to hold that office.
A more controversial interpretation of this clause occurred in 1937, when Hugo Black, then a Senator from Alabama, was appointed by the U.S. Supreme Court. The hitch in this arrangement resulted from just-completed congressional action which had improved the financial position of Supreme Court justices retiring at the age of 70. The appointment eventually went through, justified by the argument that the pay increase did not represent an increase to Black, who was only 51 years of age and thus not a recipient of any additional benefits.
The process of constitutional interpretation, as demonstrated in this example and others, is a key part of our nation's legal history. Congress, like the rest of the government, is subject to interpretations flavored by the changing circumstances of time. While this may raise questions of advantage for some, it is this very flexibility which keeps the Constitution a document still relevant to the needs of our complicated society.