{ "id": "R40105", "type": "CRS Report", "typeId": "REPORTS", "number": "R40105", "active": true, "source": "EveryCRSReport.com, University of North Texas Libraries Government Documents Department", "versions": [ { "source": "EveryCRSReport.com", "id": 347770, "date": "2009-04-16", "retrieved": "2016-04-06T22:29:09.508614", "title": "Authority of the Senate Over Seating Its Own Members: Exclusion of a Senator-Elect or Senator-Designate", "summary": "This report is intended to provide a brief legal analysis of the authority of the Senate over the seating of its own Members, and the Senate\u2019s power to exclude, that is, to refuse by majority vote to seat a Senator-elect or Senator-designate who presents valid credentials from state officials. Under Article I, Section 5, clause 1 of the Constitution, each house of Congress is granted the express authority to judge the \u201celections,\u201d the \u201creturns,\u201d and the \u201cqualifications\u201d of its own Members. This explicit delegation in the Constitution grants the Senate broad authority to judge and to make the final determination concerning not only the narrow constitutional \u201cqualifications\u201d of a Member-elect or Member-designate (age, citizenship, and inhabitancy in the state), but also the legitimacy and validity of the \u201celection\u201d or selection of those presenting \u201ccredentials\u201d (the official \u201creturn\u201d from state officers) to the Senate.\nThe question of judging the qualifications, elections, and returns of Members, and the issue of exclusion, may arise in the context of both a contested popular election, as well as in an appointment by a governor to fill a Senate vacancy. The issue is generally joined at the time a Senator-elect or Senator-designate is to be sworn and seated, by an objection raised to the taking of the oath based on questioning the \u201cqualifications,\u201d the \u201celection,\u201d or the \u201creturns\u201d (credentials) regarding such individual. At that time, the Senate may decide to seat such Member-designate or Member-elect \u201cwithout prejudice,\u201d or may seat unconditionally such individual during the pendency of the committee and Senate review of the issues. On less frequent occasions, the Senate has refused to seat one presenting credentials while the issue of qualifications or selection is referred to the committee of jurisdiction (currently the Senate Committee on Rules and Administration) for investigation and recommendation. The Senate may, alternatively, decide not to consider an objection, and seat the Member with no referral of the question to a committee.\nWhen judging \u201cqualifications,\u201d the Supreme Court has said that the House (and, by implication, the Senate) is limited to an examination of the three constitutional qualifications for office (and any potential \u201cdisqualifications,\u201d such as under the Fourteenth Amendment).The Court noted that anyone meeting those qualifications would have to be seated, and not excluded, if such person were \u201cduly\u201d elected. Powell v. McCormack, 395 U.S. 486, 522 (1969).Under the Powell rationale, and under the express constitutional grant of authority, the Senate and House may, therefore, in addition to examining \u201cqualifications\u201d of Members-elect, examine the \u201celections\u201d and \u201creturns\u201d of their own Members, that is, whether an individual presenting valid credentials has been \u201cduly\u201d chosen. A few years after the Powell decision, the Supreme Court clearly affirmed the right of the Senate to make the final and conclusive determination concerning the election process and the seating of its own Members. In the case of contests or challenges properly raised concerning the election or selection of a Senator, the Court affirmed the constitutional authority for \u201can independent evaluation by the Senate\u201d of the selection of those presenting themselves for membership. Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972).\nThe Senate treats inquiries into those appointed by a state governor as elections cases; and on numerous occasions in the past the Senate has considered the legality or validity of a gubernatorial selection. Additionally, the Senate has from time-to-time examined the selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were \u201cchosen\u201d by state legislatures) to see if corruption or bribery has so tainted the process as to call into question its validity. In such cases the Senate is not judging the \u201ccharacter\u201d or \u201cfitness\u201d of the individual (as it may in an \u201cexpulsion\u201d of a Member, requiring a 2/3rds vote), but rather is judging the validity, propriety, and lawfulness of that person\u2019s selection or election.", "type": "CRS Report", "typeId": "REPORTS", "active": true, "formats": [ { "format": "HTML", "encoding": "utf-8", "url": "http://www.crs.gov/Reports/R40105", "sha1": "3c25e32a50b6fcc4e61f980f359ef494c2815039", "filename": "files/20090416_R40105_3c25e32a50b6fcc4e61f980f359ef494c2815039.html", "images": null }, { "format": "PDF", "encoding": null, "url": "http://www.crs.gov/Reports/pdf/R40105", "sha1": "d97c272bc986fd13d0ef0082c044e9222e193f7e", "filename": "files/20090416_R40105_d97c272bc986fd13d0ef0082c044e9222e193f7e.pdf", "images": null } ], "topics": [ { "source": "IBCList", "id": 3427, "name": "Voting and Elections" } ] }, { "source": "University of North Texas Libraries Government Documents Department", "sourceLink": "https://digital.library.unt.edu/ark:/67531/metadc812426/", "id": "R40105_2009Jan05", "date": "2009-01-05", "retrieved": "2016-03-19T13:57:26", "title": "Authority of the Senate to Exclude and Not Seat a Senator-Elect or Senator-Designate", "summary": null, "type": "CRS Report", "typeId": "REPORT", "active": false, "formats": [ { "format": "PDF", "filename": "files/20090105_R40105_c0f1de2a47f14163fcca9bb0ac44047e8759807c.pdf" }, { "format": "HTML", "filename": "files/20090105_R40105_c0f1de2a47f14163fcca9bb0ac44047e8759807c.html" } ], "topics": [] } ], "topics": [ "Constitutional Questions", "Economic Policy", "Legislative Process" ] }