A Question of Ethics

May Campaign Materials Bear the Great Seal?

March 16, 2010

Q: I work on the re-election campaign for a Senator, and I have a question about the use of patriotic symbols on campaign literature. I saw that Sen. David Vitter’s (R-La.) opponent has filed an ethics complaint alleging that Vitter used the great seal of the United States on campaign materials. When our campaign sends out mass mailings, we sometimes use letterhead that bears a patriotic eagle symbol that resembles the great seal. Should we stop doing so?

A: The complaint you refer to is one filed last week by the campaign manager for Rep. Charlie Melancon (D-La.) against Vitter alleging that Vitter unlawfully sent out a campaign fundraising letter bearing a facsimile of the great seal of the United States. Before turning to that complaint and your question, what is the great seal and why all the fuss about it?

The great seal dates back to the earliest days of the United States. In fact, it was on Independence Day itself—July 4, 1776—that the Continental Congress first passed a resolution creating a committee to “bring in a device for a seal for the United States of America.” The committee was composed of three men: Benjamin Franklin, John Adams and Thomas Jefferson. Congress ultimately did not approve of the committee’s proposed design, and it was not until six years and several committees later that Congress settled on a design for the seal.

Today, the great seal is used to seal documents 2,000 to 3,000 times a year. These include treaty ratifications and appointments of ambassadors, Cabinet officers and other officers appointed by the president. The die and press that affix the great seal are locked in a glass case at all times at the Department of State, even during the sealing of a document.

In 1966, Congress passed a bill protecting the great seal from abuse and making it a crime to display any likeness of the great seal for the purpose of conveying the false impression of approval by the U.S. government. President Lyndon Johnson signed the bill into law, stating that for many years there had been a need for legislation governing the commercial reproduction and use of our great seal.

It is this law that Melancon’s campaign manager claims that Vitter violated. The complaint alleges that Vitter sent a campaign fundraising letter with a “bald eagle with outstretched wings, clutching arrows and an olive branch, in other words, a facsimile of the Great Seal.” Vitter’s campaign has fired back, calling the complaint “frivolous.”

So, may you use images resembling the great seal on your campaign materials? Unfortunately, the statute in question is not easy to parse. Essentially, it makes it illegal to display “any printed or other likeness” of the great seal “or any facsimile thereof” on any stationery “for the purpose of conveying, or in a manner reasonably calculated to convey, a false impression of sponsorship or approval” by the U.S. government. The Senate Ethics Manual states that while the interpretation of the statute is a matter for the Department of Justice, “it appears that in most cases use of … the Great Seal for normal official Senate business would be appropriate; by contrast, commercial use, personal use or campaign use would be improper.” The manual also states that “if a Member’s campaign wants to use a symbol of government on its campaign stationery, a depiction of the Capitol dome would be appropriate.” (The House Ethics Manual explains that the reason for the distinction is that depictions of the Capitol Dome, unlike the great seal, are in the public domain.)

Thus, the Senate Ethics Committee has said that “in most cases” it “appears” that campaign use of the great seal “would be improper,” but the panel has left formal interpretation of the statute to the DOJ and the courts. Neither the DOJ nor the courts have ever issued such an interpretation, leaving many questions unanswered. For example, what is meant by the terms “likeness” and “facsimile” of the great seal? The dictionary defines a likeness as a “copy” and a “facsimile” as an “exact copy.” Does this mean that the prohibition applies only to exact copies of the great seal? This would be significant in Vitter’s case because the symbol on his campaign letter is not an exact replica of the great seal. Among the differences, the eagle on Vitter’s campaign letters faces a different direction than the eagle on the great seal.

In addition, when is the great seal displayed “in a manner reasonably calculated to convey” the impression of approval by the U.S. government? Again, the answer could be significant to Vitter’s case. Vitter’s campaign letter bears the stamp “Paid for by David Vitter for U.S. Senate,” and its politically charged content is such that it would seem extremely unlikely that anyone would conclude that it was endorsed by the U.S. government, e.g., “I’m fighting President Obama and the liberals in Washington.”

In sum, it is not clear in what circumstances it is permissible to use symbols resembling the great seal. The language of the statute suggests that it is probably OK to use such symbols in circumstances that are not intended to convey the approval of the U.S. government. However, the language is ambiguous, and there is always the risk that your campaign opponent could take a different view and file an ethics complaint. As you may know, a Senate ethics complaint automatically triggers a “preliminary inquiry” by the Senate Ethics Committee, which I suspect could be an unwelcome burden among all of the other demands on your Senator’s time. If you want to avoid any chance of that headache, perhaps your campaign materials would look just as nice with a Capitol Dome?

© Copyright 2010, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.


A Question of Ethics

Are Expelled House Members Able to Be Re-Elected?

March 2, 2010

Q: I am an Ohio voter with a question regarding the qualifications to be a Member of Congress. I read that James Traficant is planning to run for the House of Representatives this year. As I recall, he was expelled from the House years ago for accepting bribes, and even went to jail. Doesn’t that make him ineligible for Congress? Or can expelled Members rejoin the House if elected again?

A: In 2002, after almost 18 years in Congress, Rep. James Traficant (D-, now I-Ohio) was convicted of federal charges of bribery, racketeering and tax evasion. He was subsequently expelled from the House and sentenced to eight years in prison. Later that year, despite being in prison, Traficant ran for re-election. Although he lost to a former aide, he did win 15 percent of the vote. More than 27,000 people voted for him.

Several months ago, Traficant was released from prison, and he recently announced that he will run for Congress as an Independent in one of three districts. So, is Traficant eligible for the seat? If the voters of his district were to elect a man who was expelled from Congress for abusing his power, would Congress be required to seat him?

The answer to these questions is almost certainly yes. The requirements for membership in the House appear in Article 1, Section 2 of the Constitution, which states in full: “No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” This means there are just three requirements to be a Member of the House. You must be 25 years old, a U.S. citizen for seven years and an inhabitant of the state you represent. These criteria cannot be changed without an amendment to the Constitution.

In the landmark 1969 case Powell v. McCormack, the Supreme Court considered the grounds on which Congress may refuse to seat someone who has been duly elected. The case involved Rep. Adam Clayton Powell Jr. (D-N.Y.) who, in 1966, faced a House Special Committee investigation relating to expenditures of a House committee that he chaired. The special committee concluded that Powell deceived the House about travel expenses and that there was strong evidence of illegal salary payments to his wife. However, no formal action was taken against Powell at the time. Later that year, Powell won re-election. Congress, however, refused to seat him.

Powell subsequently filed suit claiming that he had been unconstitutionally excluded from Congress. His case eventually went all the way to the Supreme Court, which sided with Powell. “In judging the qualifications of its Members,” the court said, “Congress is limited to the standing qualifications prescribed in the Constitution.” Because Powell “was duly elected by the voters … and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”

This limitation on Congressional power was not unintended by the framers of the Constitution. In fact, the framers explicitly rejected proposals to allow Congress discretion to create its own qualifications for its Members. James Madison argued that such discretion would be “an improper and dangerous power” and that if Congress could regulate the qualifications of its Members, it could “by degrees subvert the Constitution.”

All of this means that if Traficant were elected, Congress would have no choice but to seat him. However, this does not end the inquiry. There remains the question of whether, if Congress were to seat Traficant, it could then expel him. After all, while the Constitution may prohibit Congress from denying a seat to an eligible and duly elected candidate, it also grants the House the authority to punish its Members for disorderly behavior and, with a vote of two-thirds of the House, expel its Members. This authority to expel Members has long been considered to be an extremely broad power, with few if any limitations. And, in Powell v. McCormack, the Supreme Court made clear that its holding applied to Congress’ authority to exclude a Member-elect and that it was expressing no formal ruling on what limits may exist on Congress’ power to expel a Member once seated.

Yet, although the court’s holding did not officially concern the power to expel, the language of its opinion did pour cold water on the notion that Congress could expel a Member for conduct that occurred before the Member was elected. The court cited a House Select Committee report stating that precedent provides that “the House will not expel a Member for reprehensible action prior to his election as a Member.”

Indeed, for Congress to expel a Member for conduct that occurred prior to the Member’s election would risk Congress displacing the voters’ judgment with its own. As Justice William Douglas put it in a concurring opinion in Powell v. McCormack, when the electors choose a person “who is repulsive to the Establishment in Congress, by what constitutional authority can that group of electors be disenfranchised?” Similarly, a 2005 report by the Congressional Research Service stated that the “defeat at the polls of Members who had engaged in misconduct was precisely the principal ‘ethics’ oversight planned by the Framers of the Constitution.”

Speaking of Members’ misconduct, there is an interesting footnote to the Powell case. A year after the Supreme Court’s decision, Powell, still plagued by his ethics issues, was narrowly defeated in the Democratic primary. The man who defeated Powell and took the seat that Powell had first held 26 years earlier? Charlie Rangel. Rangel has held the seat ever since.

© Copyright 2010, Roll Call Inc. Reprinted with permission. Widely regarded as the leading publication for Congressional news and information, Roll Call has been the newspaper of Capitol Hill since 1955. For more information, visit www.rollcall.com.