One of the more interesting rules changes in the new Congress is an effort to end unauthorized live streaming and picture taking by House members on that chamber’s floor.
Last June, House Democrats staged a sit-in to protest gun legislation after the Orlando shootings, leading House Republicans to shut off a C-SPAN television feed of the protest. The resourceful Democrats then used Twitter and Facebook to show live video of the protest from the House floor – which was perceived as a violation of the House’s rules.
In response, a rules change passed Tuesday night championed by Speaker Paul Ryan allows the House’s sergeant-at-arms to fine any unauthorized picture taking by Representatives on the House floor. The new decorum rule includes an appeals process as a way to address a constitutional concern.
Democrats opposed to the rules change have made two arguments. One is that without an appeals process, the anti-camera fines violate their constitutional due process rights. The second argument is that only the full House, and not an officer of the House, can levy a punishment against one of its members.
Under Article 1, Section 5 of the Constitution, the Rules and Expulsion Clause allows the House and Senate to punish its own members for violating rules as defined by each chamber, including episodes of bad behavior. It reads, “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.”
While it is possible House Democrats will test the constitutionality of the decorum rules changes, it is less likely they will test the ability of the House to fine its own members for conduct. Deschler’s Precedents of the House of Representatives, an authoritative record of past congressional proceedings, details the origins of fines levied by Congress against its own members.
In February 1902, the Senate was shocked when its two Democrats from South Carolina, John McLauirn and Ben Tillman, started trading punches on the Senate floor in a fist fight over patronage.
A Senate committee investigating the incident found that “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 two Senators eventually faced censure and the Senate added a rule stating that, “No senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”
A significant fine was levied by the House in the late 1960s against Adam Clayton Powell, Jr. Deschler’s Precedents says the debate in the House over punishing Powell for unauthorized use of House funds ended with a $25,000 fine imposed on him.
During the proceedings, Representative John Conyers questioned the ability of the House to fine its own members for conduct. “A fine and a loss of seniority is a completely unprecedented procedure for the House to use in punishing a Member. There is simply no precedent whatsoever for the House to punish its Members other than by censuring or expelling,” Conyers argued.
Since then, several House members have been told to pay up for conduct issues. Newt Gingrich was told by the House to pay $300,000 in January 1997 for costs associated with an ethics investigation into his conduct. (It is still a matter of debate if the payment was actually a fine.)
In August 2012, Laura Richardson, a House member from California, agreed to pay a $10,000 fine after she acknowledged wrongdoing in an agreement with the House Ethics Committee in a matter related to her congressional staff also working for her re-election campaign. The House also reprimanded Richardson.
The Senate and House have other punishment options available, if warranted, including censure, expulsion, exclusion, suspension of privileges, and deprivation of seniority status.
As for what conduct can be fined, the latest Congressional Research guidance says that while in the past fines or penalties were levied for matters related to financial misconduct, the House isn’t limited to issuing fines in such matters.
“The Committee on Ethics has noted in its Rules that the guidance concerning fines and other sanctions recommended to the House ‘sets forth general guidelines and does not limit the authority of the Committee to recommend other sanctions,’” the CRS says.
Scott Bomboy is the editor in chief of the National Constitution Center.
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