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Simultaneous Office Holding

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Deven says:

    Not quite the issue, but in New Jersey, folks hold state and city offices at the same time. So a mayor can also be a state senator. Seems to entrench folks and possibly open the door to more corruption.

  2. jt says:

    I recall, perhaps incorrectly, that Huey Long delayed taking his Senate seat until after wrapping up some business as governor, and after resigning as governor.

    On the state-local level, this should be interesting –
    http://www.lawyerscommittee.org/admin/section_5/objections/files/1995_02_06_MS_94-4538.PDF

  3. Gerard Magliocca says:

    True. He was the Senator but did not go to Washington. (Now you could say the Senate seat was vacant, but that gets into the weeds.)

  4. mls says:

    House precedents would forbid this. According to the House Ethics Manual, “While the Constitution does not prohibit House Members from
    simultaneously holding state or local office, the House has determined that ―a high state office is incompatible with congressional membership, due to the manifest inconsistency of the respective duties of the positions.”

  5. Gerard Magliocca says:

    The House cannot forbid this except through expulsion. That would violate the Qualification Clause, as construed in Term Limits v. Thornton.

  6. mls says:

    I think you are saying that if a member-elect wanted to challenge the House’s refusal to seat him or her for holding an incompatible state office, he or she would win in court. That may be true, with a few caveats (such as the fact that what the plaintiff would get would be salary, rather than the right to actually be seated and participate in House proceedings). But no one would have thought this was a winning strategy prior to Powell v. McCormack, and even if it would be sufficient to force the House to seat the member today, it would not stop it from imposing disciplinary sanctions on the member, up to and including expulsion.

    As a practical matter, therefore, the House can and has forbidden this for a very long time, and no one has thought it worthwhile to challenge it. Whether you think the House has done so with proper constitutional authority is a different question.

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