Simultaneous Office Holding
posted by Gerard Magliocca
In going through some of the ratification materials on the Constitution, one point of discussion that I found interesting is the idea that it was permissible for someone to hold federal and state office simultaneously. This has happened in our history (most notably when Huey Long served as the Governor and the Senator of Louisiana), but I’m not sure how widespread this was in the eighteenth and nineteenth centuries. (No examples come to mind today.) Any thoughts on that would be appreciated. (Structurally, it’s interesting that the Framers thought this vertical merger was not a problem while it was bad for members of Congress to hold positions in the executive or judicial branches.)
March 22, 2013 at 10:19 am
Posted in: Constitutional Law, Uncategorized
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Responses (6)
Deven - March 22, 2013 at 12:49 pm
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.
jt - March 22, 2013 at 1:34 pm
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
Gerard Magliocca - March 22, 2013 at 2:29 pm
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.)
mls - March 23, 2013 at 10:57 am
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.”
Gerard Magliocca - March 23, 2013 at 11:57 am
The House cannot forbid this except through expulsion. That would violate the Qualification Clause, as construed in Term Limits v. Thornton.
mls - March 23, 2013 at 3:54 pm
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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