The Pittsburgh Press (December 18, 1946)
Background of news –
Is you is, or is you ain’t?
By Douglas Smith
If the Senate denies a seat to Democratic Sen. Bilbo of Mississippi next month, it will be the first time such action has been taken in 20 years.
And, if the previous cases are an indication, it will provoke a long argument about the Senate’s right to refuse to seat a man except for reasons specifically mentioned in the Constitution.
Such an argument is beside the point, practically speaking, because history has shown that the Senate or the House can refuse to seat a man for almost any reason.
This is because the Constitution says that “each house shall be the judge of the elections, returns, and qualifications of its own members.” It can’t be taken to court; there is no appeal.
William S. Vare of Pennsylvania and Frank L. Smith of Illinois, both Republicans, were denied their seats by a Republican-controlled Senate because of the fortunes each had spent in the 1926 campaigns.
Months to decide
Their cases took months to decide. Meanwhile, both were granted the privilege of the Senate floor only for the purposes of arguing their cases.
Defenders of Messrs. Smith and Vare argued that while the Senate could expel a member, it could not refuse to seat one who had been elected, because the Constitution says no state shall be deprived of its Senate strength without its consent.
President Garfield was quoted as saying on the Senate floor, in an earlier case, that “if a moral monster is elected, and comes here regularly authenticated, it is our duty to swear him in.”
The argument indicated that both sides felt Messrs. Vare and Smith would lose – as they did – if the vote were on a majority basis but that if they were sown in, their opponents could not muster the two-thirds majority it would take to oust them.
The case of Henry Downs
Senators went as far back as 18th century England to argue the point of whether the body could refuse to seat a member. One brought out the case of Henry Downs, who in 1742 was denied a seat in the Virginia House of Burgesses because he had stolen a sheep and had received 15 lashes as punishment – even though the crime occurred 21 years previously.
Despite these arguments, authorities agree that the right of the Senate or House to deny seats to would-be members, for practically any reason, is fairly well established.
In 1899, the House excluded a man on the ground that he was a Mormon with several wives.
Victor L. Berger, Wisconsin Socialist, was excluded twice. In 1919, he was denied his seat because he had been convicted of violating the wartime “espionage act,” was elected again, and refused a seat the second time.