Writing in The Federalist[127] with reference to the election of Members of Congress, Hamilton expressed the opinion that "the qualifications of persons who may * * * be chosen * * * are defined and fixed in the Const.i.tution and are unalterable by the legislature." The question remained academic until the Civil War, when Congress pa.s.sed a law requiring its members to take an oath that they had never been disloyal to the Federal Government. In subsequent contests over the seating of men charged with disloyalty, the right of Congress to establish by law other qualifications for its members than those contained in the Const.i.tution was sharply challenged. Nevertheless, both the House and Senate, relying on this act, did refuse to seat several persons.[128] At this time the princ.i.p.al argument against the statute was that all persons were eligible for the office of Representative unless the Const.i.tution made them ineligible. In Burton _v._ United States,[129]
the argument was given a new twist. A law providing that a Senator or Representative convicted of unlawfully receiving money for services rendered before a government department should be "rendered forever thereafter incapable of holding any office of honor, trust or profit under the Government of the United States," was a.s.sailed as an unconst.i.tutional interference with the authority of each House to judge the qualifications of, or to expel, one of its own members. The Court construed the statute not to affect the offender"s tenure as a Senator, and left undecided the power of Congress to impose additional qualifications (or disqualifications).[130] In exercising the power granted by section 5 to judge the qualifications of its own members, each House has a.s.serted the power to inquire into the conduct of a member-elect prior to his election. In 1900 the House of Representatives refused to seat a person who practiced polygamy,[131] and in 1928 the Senate voted to exclude a Senator-elect on the ground that his acceptance of large campaign contributions from persons who were subject to regulation by a State Administrative Commission of which he had been Chairman were "contrary to sound public policy" and tainted his credentials with fraud and corruption.[132]
INABILITY OF THE STATES TO ENLARGE
A State may not add to the qualifications prescribed by the Const.i.tution for members of the Senate and House of Representatives. a.s.serting this principle, the House in 1807 seated a member whose election was contested on the ground that he had not been twelve months a resident of the district from which elected as required by State law. No attempt was made to ascertain whether these requirements were met because the State law was deemed to be unconst.i.tutional.[133] Both the House and Senate have seated members elected during their term of office as State judges, despite the provision of State const.i.tutions purporting to bar the election of judges to any other office under the State or the United States during such term.[134]
Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons].[135] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be ent.i.tled to chuse three, Ma.s.sachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
THE CENSUS REQUIREMENT
While section 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the free persons in the States, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever-lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court;[136] it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929,[137] it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called "method of major fractions" which had been earlier employed in the apportionment of 1911.
Clause 4. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Section 3. Clause 1. [The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one vote].
Clause 2. Immediately after they shall be a.s.sembled in Consequence of the first Election, they shall be divided as equally as may be into three cla.s.ses. The Seats of the Senators of the first Cla.s.s shall be vacated at the Expiration of the second Year, of the second Cla.s.s at the Expiration of the fourth Year, and of the third Cla.s.s at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies].[138]
Clause 3. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Clause 4. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Clause 5. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
Clause 6. The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Section 4. Clause 1. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Federal Legislation Under This Clause
Not until 1842 did Congress undertake to exercise the power to regulate the "times, places and manner of holding elections for Senators and Representatives." In that year it pa.s.sed a law requiring the election of Representatives by districts.[139] Prior to that time some of the States had sought to increase their influence by electing all of their Representatives on a general ticket. The frequent deadlocks between the two Houses of State legislatures with respect to the election of Senators prompted Congress to pa.s.s a further act in 1866, which compelled the two bodies to meet in joint session on a specified day, and to meet everyday thereafter and vote for a Senator until one was elected.[140] The first comprehensive federal statute dealing with elections was adopted in 1870. Under the Enforcement Act of 1870 and kindred measures,[141] false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by State of federal law, were made federal offenses. Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the registration of voters and election tally sheets. After twenty-four years experience Congress repealed those portions of the Reconstruction legislation which dealt specifically with elections, but left in effect those dealing generally with Civil Rights.[142] As seen earlier, those sections have been invoked for the prosecution of election offenses which interfere with the rights of voters guaranteed by the second section of this article. The election laws, of the Reconstruction period were held invalid in part as applied to munic.i.p.al elections,[143] but were found to be a const.i.tutional exercise of the authority conferred by this section with respect to the election of members of Congress.[144]
LEGISLATURE DEFINED
While requiring the election of Representatives by districts, Congress has left it to the States to define the areas from which members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio ex rel. Davis _v._ Hildebrant,[145] a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States, produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to State legislatures by the Const.i.tution, the Court decided that it was legislative in character and hence subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the State const.i.tution.[146]
PRESENT INEQUALITY OF ELECTION DISTRICTS
The Reapportionment Act of 1929[147] omitted a requirement contained in the 1911 law[148] that Congressional districts be "composed of a contiguous and compact territory, * * * containing as nearly as practicable an equal number of inhabitants." Since the earlier act was not repealed it was argued that the mandate concerning compactness, contiguity and equality of population of districts was still controlling. The Supreme Court rejected this view.[149] In Colegrove _v._ Green,[150] the Illinois Apportionment law, which created districts now having glaringly unequal populations, was attacked as unconst.i.tutional on the ground that it denied to voters in the more populous districts the full right to vote and to the equal protection of the laws. The Court dismissed the complaint, three Justices a.s.serting that the issue was not justiciable, and a fourth that the case was one in which the Court should decline to exercise jurisdiction.[151]
Justice Black, dissenting in an opinion in which Justices Douglas and Murphy joined, argued: "While the Const.i.tution contains no express provision requiring that Congressional election districts established by the States must contain approximately equal populations, the const.i.tutionally guaranteed right to vote and the right to have one"s vote counted clearly imply the policy that State election systems, no matter what their form, should be designed to give approximately equal weight of each vote case. * * * legislation which must inevitably bring about glaringly unequal representation in the Congress in favor of special cla.s.ses and groups should be invalidated, "whether accomplished ingeniously or ingenuously"."[152]
CONGRESSIONAL PROTECTION OF THE ELECTORAL PROCESS
Congress can by law protect the voter from personal violence or intimidation and the election itself from corruption and fraud.[153] To accomplish these ends it may adopt the statutes of the States and enforce them by its own sanctions.[154] It may punish a State election officer for violating his duty under a State law governing Congressional elections.[155] 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.[156] At one time the Court held that Congress had no power, at least prior to the adoption of the Seventeenth Amendment, to limit the expenditures made to procure a primary nomination to the United States Senate,[157] but this decision has been greatly weakened, and the right of the National Government to regulate primary elections conducted under State law for the nomination of Members of Congress has been squarely recognized where such primary is made by State law "an integral part of the procedure of choice, or where in fact the primary effectively controls the choice,..."[158]
Clause 2. [The Congress shall a.s.semble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law appoint a different Day].
Section 5. Clause 1. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall const.i.tute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
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.
Clause 3. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Clause 4. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Powers and Duties of the Houses
POWER TO JUDGE ELECTIONS
Each House, in judging of elections under this clause acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.[159] It may punish perjury committed in testifying before a notary public upon a contested election.[160] The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[161] Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.[162] Nor does such refusal unlawfully deprive the State which elected such person of its equal suffrage in the Senate.[163]
"A QUORUM TO DO BUSINESS"
For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote on any proposition submitted to the House in order to satisfy the const.i.tutional requirement for a quorum. It was a common practice for the opposition to break a quorum by refusing to vote. This was changed in 1890, by a ruling made by Speaker Reed, and later embodied in Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.[164] The Supreme Court upheld this rule in United States _v._ Ballin,[165] saying that the capacity of the House to transact business is "created by the mere presence of a majority," and that since the Const.i.tution does not prescribe any method for determining the presence of such majority "it is therefore within the competency of the House to prescribe any method which shall be reasonably certain to ascertain the fact."[166] The rules of the Senate provide for the ascertainment of a quorum only by a roll call,[167] but in a few cases it has held that if a quorum is present, a proposition can be determined by the vote of a lesser number of members.[168]
RULES OF PROCEDURE
In the exercise of their const.i.tutional power to determine their rules of proceedings the Houses of Congress may not "ignore const.i.tutional restraints 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. But 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."[169] Where a rule affects private rights, the construction thereof becomes a judicial question. In United States _v._ Smith,[170] the Court held that the Senate"s attempt to reconsider its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its rules, and did not deprive the appointee of his t.i.tle to the office. In Christoffel _v._ United States[171] a sharply divided Court upset a conviction for perjury in the district courts of one who had denied under oath before a House Committee any affiliation with Communism. The reversal was based on the ground that inasmuch as a quorum of the Committee, while present at the outset, was not present at the time of the alleged perjury, testimony before it was not before a "competent tribunal" within the sense of the District of Columbia Code.[172] Four Justices, speaking by Justice Jackson dissented, arguing that under the rules and practices of the House, "a quorum once established is presumed to continue unless and until a point of no quorum is raised" and that the Court was, in effect, invalidating this rule, thereby invalidating at the same time the rule of self-limitation observed by courts "where such an issue is tendered."[173]
POWERS OF THE HOUSES OVER MEMBERS
Congress has authority to make it an offense against the United States for a Member, during his continuance in office, to receive compensation for services before a government department in relation to proceedings in which the United States is interested. Such a statute does not interfere with the legitimate authority of the Senate or House over its own Members.[174] In upholding the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court a.s.serted that "the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member."[175] It cited with apparent approval the action of the Senate in expelling William Blount in 1797 for attempting to seduce an American agent among the Indians from his duty and for negotiating for services in behalf of the British Government among the Indians--conduct which was not a "statutable offense" and which was not committed in his official character, nor during the session of Congress nor at the seat of government.
THE DUTY TO KEEP A JOURNAL