John Bingham on the Expulsion Power

I’ve taken a closer look at Bingham’s final speech in the House of Representatives, in which he discussed expulsion. (The cite is Cong. Globe, 42nd Cong, 3d Sess. App. at 136-140 (1873). In that speech, Bingham rejected the argument that any house of Congress could expel a member for misconduct that occurred prior to his election. Since this point bears directly on what might happen with Roy Moore, I thought that I would provide some quotes from the speech. For the most part, JAB discussed the precedents of Parliament and Congress, though he also made a textual point that I’ll discuss at the end of the post.

Here is how Bingham summarized the internal precedents as of 1873:

It has been solemnly declared that no such power belongs to either House, to wit: to try and expel a member of either body for offenses, though infamous in their character, committed before his election.

He further denied that the House had “jurisdiction over the past life of every man who by the suffrages of the people may be elected a member of Congress.” At one point he hedged a bit and suggested that a criminal conviction during that Congress for past misconduct might present a different question, but that hypothetical does not cover the Moore case.

Bingham’s textual argument went something like this. Article One, Section Five of the Constitution states: “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.” He argued that the language about disorderly behavior referred to only behavior as a member, and thus the next clause about expulsion should also be so limited. (In other words, expulsion is a specific punishment and thus linked to the prior clause.) He also, of course, argued more broadly that voters should be able to choose their representatives subject only to the qualifications in the Constitution (age, citizenship, residence).

I highly doubt that anywhere close to two-thirds of the Senate is interested in expelling Senator Moore, but if the idea is taken up seriously here is one source people should consider.

UPDATE: Or, if Jones wins, never mind.

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