Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Federalism
Congress
Slavery and the Constitution
The Presidency
The Federal Judiciary
Some Other Important Details
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The Powers of Congress

Congressmen’s Incapacity from Holding Other Offices

There are some constitutional provisions that provoked almost no discussion within the Constitutional Convention yet which later became a fertile and recurring source of bitter controversy. The interstate commerce clause comes immediately to mind. There are other features of the Constitution which sparked a virulent and unrelenting firestorm within the Convention but which have survived today as fairly inconsequential (and mostly forgotten) fragments of our constitutional history. Such was the restrictions laid on congressmen from accepting other political offices. The specific provision in Article I, Section 6, of the Constitution had its origins in a similar provision in the Articles of Confederation, but the passionate debate over this issue went back much further: to the political controversies and imputed corruption that raged under the British Crown. 

In Britain, the king had sole authority over the appointment power, and he could use it to bribe members of Parliament to vote according to his will by offering them tempting appointments in exchange—sometimes to offices of great prestige or profit that had been created only for that purpose. Although there were some who believed that this so-called “corruption” was in fact a necessary check between the branches and an unavoidable part of political wheeling and dealing, most Americans had been disgusted with this practice. Many state constitutions, as well as the Articles of Confederation, barred legislators from simultaneously serving in other offices. But there remained some disagreement about how far such a prohibition ought to extend in order to stamp out the possibility of corruption. 

Prohibitions on Officeholding under the Articles

The Articles of Confederation had merely prevented members of Congress from simultaneously “holding any office under the United States, for which he, or another for his benefit receives any salary, fees or emolument of any kind.” The Virginia Plan included a similar ineligibility yet had made it even more severe. It had prohibited members of both houses from holding any other office either “during the term of Service” or for some yet-to-be-specified number of years after they left office. This provision would almost wholly guarantee that members of the House or Senate could not be bribed by lucrative appointments, but it also might deprive the nation of its best talents when important offices fell vacant. 

Some delegates argued that there should be no restriction, claiming that the British system of patronage, while it was admittedly subject to abuses, was nonetheless an important and necessary system for rewarding political merit. The sort of ambition that sought to serve the public good was a virtue, and virtue should be rewarded. Charles Pinckney added that Congress would be the best place to find capable men who were able to serve in other capacities. If members of the House were elected into office, that proved “they had the confidence of the people.” As for the Senate, it “might be supposed to contain the fittest men. He hoped to see that body become a school of public ministers, a nursery of statesmen.” If the Framers disqualified the members of these bodies from serving in other capacities, then “the legislature would cease to be a magnet to the first talents and abilities.” George Mason and others, however, saw these arguments as a direct attack on the sort of republican virtue that was necessary if popular governments were to survive. 

More Squabbling

The arguments from both sides sometimes verged on the ridiculous. To listen to those who wanted to strike out the ineligibility, one would suppose that the congressional halls would be bereft of talented and capable men unless the job offered the prospect of immediate promotion to some superior office. And to listen to those who insisted on the severest disqualifications, one would suppose that without this ineligibility legislators would spend all their days creating lucrative and unnecessary offices and arranging for their own advancement to them. 

Ultimately, it was decided by a narrow majority to significantly loosen the restrictions on eligibility. Following Madison’s original idea, Congressmen were ineligible to any civil office which was created, or which had already existed but the salary had been increased, during the term of an individual Congressman’s tenure. This provision would prevent the possibility that offices would be created or made more lucrative only with the intention that a particular Congressman would fill them. In addition, following the example of the Articles of Confederation, the elective and appointed offices could not be held concurrently. So if a civil or military officer is elected to Congress, or if a Congressman is appointed to some other office, then that person would have to resign from the old position in order to accept the new one.