Incompatible Roles, Constitution Article 1 §6.2

On Wednesdays we study the Constitution.

Why study? Well, I think it should be obvious that democracy dies when citizens are dumb.

Why Wednesday? It works with my schedule.

What’s next? Article One, Section 6, Clause 2.

Let’s go. Article 1 §6.2

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Appointment to Executive offices – No Pre-raises

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time

It’s supposed to eliminate conflicts of interest, but doesn’t actually do so, since the language as written assumes that no elected will plan ahead for what position they will hold when their term is up. It would be pretty easy to write legislation creating a federal position that matches your resume, or to look at a federal office and think, “I’d like to do that when my term is up next year, but it doesn’t pay enough. If only there was something I could – oh yeah…”

But strangely, it doesn’t seem to have come up much. According to the Annotated Constitution (p 145), in 1909, Congress revoked a pay raise for the Secretary of State so that a former Senator would be eligible for the office.

In 1937 there was a hullabaloo when Senator Hugo Black was appointed to the Supreme Court, because Congress had recently increased the pension for Justices retiring at seventy. The appointment was defended because Black was only fifty-one at the time, and would be ineligible for the pension for nineteen years.

In 1969, it was briefly questioned whether a Member of the House of Representatives could be appointed Secretary of Defense because, under a salary bill enacted in the previous Congress, the President would propose a salary increase, including that of cabinet officers, early in the new Congress, which would take effect if Congress did not disapprove it.

(I’m quoting that last one because it’s so convoluted I’d never paraphrase it correctly. Anyway, the Representative was allowed the appointment because there was still a chance that the salary increase wouldn’t be enacted.)

Since it has only come up a few times, no one has gone to the trouble to fix an unusually sloppy bit of language in this clause.

You have one job

no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

This is not so much a prohibition of moonlighting (Clause 1 allows for “day jobs”), but yet another precaution against other branches of government unduly influencing the legislature. My beloved Annotated Constitution gives a clear explanation on page 146. Quoted in full here:

This second part of the second clause elicited little discussion at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the prevention of the corruption of the separation of powers. Congress has at various times confronted the issue in regard to seating or expelling persons who have or obtain office in another branch. Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary commissions who receive no compensation as members are not officers within the constitutional inhibition.480 Government contractors and federal officers who resign before  presenting their credentials may be seated as Members of Congress.

One of the more recurrent problems which Congress has had with this clause is the compatibility of congressional office with service as an officer of some military organization—militia, reserves, and the like. Members have been unseated for accepting appointment to military office during their terms of congressional office, but there are apparently no instances in which a Member-elect has been excluded for this reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigable matter.

And that’s the end of Section 6! See you next week for another thrilling exposition of The Constitution!