EXCLUSION OF MEMBERS OF CONGRESS FROM CIVIL OFFICE APPOINTMENTS
An inquiry into the expediency of amending the constitution so as
to prevent the appointment of any member of Congress to any federal
office of trust or profit, during the period for which he was
elected, was moved at the session 1825-26, by Mr. Senator Thomas W.
Cobb, of Georgia; and his motion was committed to the consideration
of the same select committee to which had been referred the
inquiries into the expediency of reducing executive patronage, and
amending the constitution in relation to the election of President
and Vice-President. The motion as submitted only applied to the
term for which the senator or representative was elected--only
carried the exclusion to the end of his constitutional term; but the
committee were of opinion that such appointments were injurious to
the independence of Congress and to the purity of legislation; and
believed that the limitation on the eligibility of members should
be more comprehensive than the one proposed, and should extend to
the President's term under whom the member served as well as to
his own--so as to cut off the possibility for a member to receive
an appointment from the President to whom he might have lent a
subservient vote: and the committee directed their chairman (Mr.
Benton) to report accordingly. This was done; and a report was made,
chiefly founded upon the proceedings of the federal convention which
framed the constitution, and the proceedings of the conventions
of the States which adopted it--showing that the total exclusion
of members of Congress from all federal appointments was actually
adopted in the convention on a full vote, and struck out in the
absence of some members; and afterwards modified so as to leave an
inadequate, and easily evaded clause in the constitution in place
of the full remedy which had been at first provided. It also showed
that conventions of several of the States, and some of the earlier
Congresses, endeavored to obtain amendments to the constitution to
cut off members of Congress entirely from executive patronage. Some
extracts from that report are here given to show the sense of the
early friends of the constitution on this important point. Thus:
"That, having had recourse to the history of the times in
which the constitution was formed, the committee find that the
proposition now referred to them, had engaged the deliberations
of the federal convention which framed the constitution, and of
several of the State conventions which ratified it.
"In an early stage of the session of the federal convention, it
was resolved, as follows:
"'Article 6, section 9. The members of each House (of Congress)
shall be ineligible to, and incapable of holding, any office
under the authority of the United States, during the time for
which they shall respectively be elected; and the members of the
Senate shall be ineligible to, and incapable of holding any such
office for one year afterwards.'
"It further appears from the journal, that this clause, in
the first draft of the constitution, was adopted with great
unanimity; and that afterwards, in the concluding days of the
session, it was altered, and its intention defeated, by a
majority of a single vote, in the absence of one of the States
by which it had been supported.
"Following the constitution into the State conventions which
ratified it, and the committee find, that, in the New-York
convention, it was recommended, as follows:
"'That no senator or representative shall, during the time for
which he was elected, be appointed to any office under the
authority of the United States.
"By the Virginia convention, as follows:
"'That the members of the Senate and House of Representatives
shall be ineligible to, and incapable of holding, any civil
office under the authority of the United States, during the term
for which they shall respectively be elected.'
"By the North Carolina convention, the same amendment was
recommended, in the same words.
"In the first session of the first Congress, which was held
under the constitution, a member of the House of Representatives
submitted a similar proposition of amendment; and, in the third
session of the eleventh Congress, James Madison being President,
a like proposition was again submitted, and being referred to a
committee of the House, was reported by them in the following
words:
"'No senator or representative shall be appointed to any civil
office, place, or emolument, under the authority of the United
States, untill the expiration of the presidential term in which
such person shall have served as a senator or representative.'
"Upon the question to adopt this resolution, the vote stood 71
yeas, 40 nays.--wanting but three votes of the constitutional
number for referring it to the decision of the States.
"Having thus shown, by a reference to the venerable evidence of
our early history, that the principle of the amendment now under
consideration, has had the support and approbation of the first
friends of the constitution, the committee will now declare
their own opinion in favor of its correctness, and expresses
its belief that the ruling principle in the organization of the
federal government demands its adoption."
It is thus seen that in the formation of the constitution, and
in the early ages of our government, there was great jealousy on
this head--great fear of tampering between the President and the
members--and great efforts made to keep each independent of the
other. For the safety of the President, and that Congress should
not have him in their power, he was made independent of them in
point of salary. By a constitutional provision his compensation
was neither to be diminished nor increased during the term for
which he was elected;--not diminished, lest Congress should
starve him into acquiescence in their views;--not increased,
lest Congress should seduce him by tempting his cupidity with an
augmented compensation. That provision secured the independence
of the President; but the independence of the two Houses was
still to be provided for; and that was imperfectly effected by
two provisions--the first, prohibiting office holders under the
federal government from taking a seat in either House; the second,
by prohibiting their appointment to any civil office that might
have been created, or its emoluments increased, during the term for
which he should have been elected. These provisions were deemed by
the authors of the federalist (No. 55) sufficient to protect the
independence of Congress, and would have been, if still observed
in their spirit, as well as in their letter, as was done by the
earlier Presidents. A very strong instance of this observance
was the case of Mr. Alexander Smythe, of Virginia, during the
administration of President Monroe. Mr. Smythe had been a member
of the House of Representatives, and in that capacity had voted
for the establishment of a judicial district in Western Virginia,
and by which the office of judge was created. His term of service
had expired: he was proposed for the judgeship: the letter of the
constitution permitted the appointment: but its spirit did not.
Mr. Smythe was entirely fit for the place, and Mr. Monroe entirely
willing to bestow it upon him. But he looked to the spirit of
the act, and the mischief it was intended to prevent, as well as
to its letter; and could see no difference between bestowing the
appointment the day after, or the day before, the expiration of Mr.
Smythe's term of service: and he refused to make the appointment.
This was protecting the purity of legislation according to the
intent of the constitution; but it has not always been so. A glaring
case to the contrary occurred in the person of Mr. Thomas Butler
King, under the presidency of Mr. Fillmore. Mr. King was elected a
member of Congress for the term at which the office of collector
of the customs at San Francisco had been created, and had resigned
his place: but the resignation could not work an evasion of the
constitution, nor affect the principle of its provision. He had
been appointed in the recess of Congress, and sent to take the
place before his two years had expired--and did take it; and that
was against the words of the constitution. His nomination was not
sent in until his term expired--the day after it expired--having
been held back during the regular session; and was confirmed by the
Senate. I had then ceased to be a member of the Senate, and know
not whether any question was raised on the nomination; but if I had
been, there should have been a question.
But the constitutional limitation upon the appointment of members
of Congress, even when executed beyond its letter and according to
its spirit, as done by Mr. Monroe, is but a very small restraint
upon their appointment, only applying to the few cases of new
offices created, or of compensation increased, during the period
of their membership. The whole class of regular vacancies remain
open! All the vacancies which the President pleases to create, by an
exercise of the removing power, are opened! and between these two
sources of supply, the fund is ample for as large a commerce between
members and the President--between subservient votes on one side,
and executive appointments on the other--as any President, or any
set of members, might choose to carry on. And here is to be noted
a wide departure from the theory of the government on this point,
and how differently it has worked from what its early friends and
advocates expected. I limit myself now to Hamilton, Madison and
Jay; and it is no narrow limit which includes three such men. Their
names would have lived for ever in American history, among those of
the wise and able founders of our government, without the crowning
work of the "ESSAYS" in behalf of the constitution which have been
embodied under the name of "FEDERALIST"--and which made that name so
respectable before party assumed it. The defects of the constitution
were not hidden from them in the depths of the admiration which
they felt for its perfections; and these defects were noted, and as
far as possible excused, in a work devoted to its just advocation.
This point (of dangerous commerce between the executive and the
legislative body) was obliged to be noticed--forced upon their
notice by the jealous attacks of the "ANTI-FEDERALISTS"--as the
opponents of the constitution were called: and in the number 55 of
their work, they excused, and diminished, this defect in these terms:
"Sometimes we are told, that this fund of corruption (Executive
appointments) is to be exhausted by the President in subduing
the virtue of the Senate. Now, the fidelity of the other House
is to be the victim. The improbability of such a mercenary and
perfidious combination of the several members of the government,
standing on as different foundations as republican principles
will well admit, and at the same time accountable to the
society over which they are placed, ought alone to quiet this
apprehension. But, fortunately, the constitution has provided
a still further safeguard. The members of the Congress are
rendered ineligible to any civil offices that may be created,
or of which the emoluments may be increased, during the term
of their election. No offices, therefore, can be dealt out to
the existing members, but such as may become vacant by _ordinary
casualties_; and to suppose that these would be sufficient to
purchase the guardians of the people, selected by the people
themselves, is to renounce every rule by which events ought to
be calculated, and to substitute an indiscriminate and unbounded
jealousy, with which all reasoning must be vain."
Such was their defence--the best which their great abilities, and
ardent zeal, and patriotic devotion, could furnish. They could
not deny the danger. To diminish its quantum, and to cover with a
brilliant declamation the little that remained, was their resource.
And, certainly if the working of the government had been according
to their supposition, their defence would have been good, I have
taken the liberty to mark in italics the ruling words contained
in the quotation which I have made from their works--"_ordinary
casualties_." And what were they? deaths, resignations, removals
upon impeachment, and dismissions by the President and Senate. This,
in fact, would constitute a very small amount of vacancies during
the presidential term; and as new offices, and those of increased
compensation, were excluded, the answer was undoubtedly good, and
even justified the visible contempt with which the objection was
repulsed. But what has been the fact? what has been the working of
the government at this point? and how stands this narrow limitation
of vacancies to "_ordinary casualties_?" In the first place, the
main stay of the argument in the Federalist was knocked from under
it at the outset of the government; and so knocked by a side-blow
from construction. In the very first year of the constitution a
construction was put on that instrument which enabled the President
to create as many vacancies as he pleased, and at any moment
that he pleased. This was effected by yielding to him the kingly
prerogative of dismissing officers without the formality of a trial,
or the consent of the other part of the appointing power. The
authors of the Federalist had not foreseen this construction: so
far from it they had asserted the contrary: and arguing logically
from the premises, "_that the dismissing power was appurtenant
to the appointing power_," they had maintained in that able and
patriotic work--(No. 77)--that, as the consent of the Senate was
necessary to the appointment of an officer, so the consent of the
same body would be equally necessary to his dismission from office.
But this construction was overruled by the first Congress which
sat under the constitution. The power of dismission from office
was abandoned to the President alone; and, with the acquisition
of this prerogative, the power and patronage of the presidential
office was instantly increased to an indefinite extent; and the
argument of the Federalist against the capacity of the President
to corrupt members of Congress, founded on the small number of
places which he could use for that purpose, was totally overthrown.
This is what has been done by construction. Now for the effects
of legislation: and without going into an enumeration of statutes
so widely extending and increasing executive patronage in the
multiplication of offices, jobs, contracts, agencies, retainers, and
sequiturs of all sorts, holding at the will of the President, it is
enough to point to a single act--the four years' limitation act;
which, by vacating almost the entire civil list--the whole "Blue
Book"--the 40,000 places which it registers--in every period of a
presidential term--puts more offices at the command of the President
than the authors of the Federalist ever dreamed of; and enough to
equip all the members and all their kin if they chose to accept
his favors. But this is not the end. Large as it opens the field
of patronage, it is not the end. There is a practice grown up in
these latter times, which, upon every revolution of parties, makes a
political exodus among the adversary office-holders, marching them
off into the wilderness, and leaving their places for new-comers.
This practice of itself, also unforeseen by the authors of the
Federalist, again over-sets their whole argument, and leaves the
mischief from which they undertook to defend the constitution in a
degree of vigor and universality of which the original opposers of
that mischief had never formed the slightest conception.
Besides the direct commerce which may take place between the
Executive and a member, there are other evils resulting from
their appointment to office, wholly at war with the theory of our
government, and the purity of its action. Responsibility to his
constituents is the corner-stone and sheet-anchor, in the system
of representative government. It is the substance without which
representation is but a shadow. To secure that responsibility the
constitution has provided that the members shall be periodically
returned to their constituents--those of the House at the end of
every two years, those of the Senate at the end of every six--to
pass in review before them--to account for what may have been done
amiss, and to receive the reward or censure of good or bad conduct.
This responsibility is totally destroyed if the President takes a
member out of the hands of his constituents, prevents his return
home, and places him in a situation where he is independent of their
censure. Again: the constitution intended that the three departments
of the government,--the executive, the legislative, and the
judicial--should be independent of each other: and this independence
ceases, between the executive and legislative, the moment the
members become expectants and recipients of presidential favor;--the
more so if the President should have owed his office to their
nomination. Then it becomes a commerce, upon the regular principle
of trade--a commerce of mutual benefit. For this reason Congress
caucuses for the nomination of presidential candidates fell under
the ban of public opinion, and were ostracised above twenty years
ago--only to be followed by the same evil in a worse form, that of
illegal and irresponsible "conventions;" in which the nomination is
an election, so far as party power is concerned; and into which the
member glides who no longer dares to go to a Congress caucus;--whom
the constitution interdicts from being an elector--and of whom some
do not blush to receive office, and even to demand it, from the
President whom they have created. The framers of our government
never foresaw--far-seeing as they were--this state of things,
otherwise the exclusion of members from presidential appointments
could never have failed as part of the constitution, (after having
been first adopted in the original draught of that instrument); nor
repulsed when recommended by so many States at the adoption of the
constitution; nor rejected by a majority of one in the Congress of
1789, when proposed as an amendment, and coming so near to adoption
by the House.
Thus far I have spoken of this abuse as a potentiality--as a
possibility--as a thing which might happen: the inexorable law
of history requires it to be written that it has happened, is
happening, becomes more intense, and is ripening into a chronic
disease of the body politic. When I first came to the Senate
thirty years ago, aged members were accustomed to tell me that
there were always members in the market, waiting to render votes,
and to receive office; and that in any closely contested, or nearly
balanced question, in which the administration took an interest,
they could turn the decision which way they pleased by the help of
these marketable votes. It was a humiliating revelation to a young
senator--but true; and I have seen too much of it in my time--seen
members whose every vote was at the service of government--to
whom a seat in Congress was but the stepping-stone to executive
appointment--to whom federal office was the pabulum for which
their stomachs yearned--and who to obtain it, were ready to forget
that they had either constituents or country. And now, why this
mortifying exhibition of a disgusting depravity? I answer--to
correct it:--if not by law and constitutional amendment (for it
is hard to get lawgivers to work against themselves), at least
by the force of public opinion, and the stern rebuke of popular
condemnation.
I have mentioned Mr. Monroe as a President who would not depart,
even from the spirit of the constitution, in appointing, not a
member, but an ex-member of Congress, to office. Others of the
earlier Presidents were governed by the same principle, of whom I
will only mention (for his example should stand for all) General
Washington, who entirely condemned the practice. In a letter to
General Hamilton (vol. 6, page 53, of Hamilton's Works), he speaks
of his objections to these appointments as a thing well known to
that gentleman, and which he was only driven to think of in a
particular instance, from the difficulty of finding a Secretary of
State, successor to Mr. Edmund Randolph. No less than four persons
had declined the offer of it; and seeing no other suitable person
without going into the Senate, he offered it to Mr. Rufus King of
that body--who did not accept it: and for this offer, thus made
in a case of so much urgency, and to a citizen so eminently fit,
Washington felt that the honor of his administration required him
to show a justification. What would the Father of his country
have thought if members had come to him to solicit office? and
especially, if these members (a thing almost blasphemous to be
imagined in connection with his name) had mixed in caucuses and
conventions to procure his nomination for President? Certainly he
would have given them a look which would have sent such suppliants
for ever from his presence. And I, who was senator for thirty years,
and never had office for myself or any one of my blood, have a right
to condemn a practice which my conduct rebukes, and which the purity
of the government requires to be abolished, and which the early
Presidents carefully avoided.