As someone who held elective office for over two decades, I would counsel those who choose to run for political office against knocking some rude, obnoxious reporter on his behind.  It’s not that you don’t want to do it; it’s not that some of them don’t deserve it; its not that that it wouldn’t garner a number of sympathetic votes, but over the long run it’s probably not the most prudent political move.

Gene Gianforte, a winning candidate for Congress from the state of Minnesota, recently apologized for body slamming a reporter.  The Sheriff of the county later served him with a misdemeanor citation.

Considering the fact that he may face prosecution for misdemeanor assault, may the House of Representatives refuse to seat the newly elected Congressman from Minnesota?

Qualifications to serve in Congress are specified in the Constitution.

To serve in the House of Representatives, a person must be at least twenty-five years old, a citizen of the United States for at least seven years, and an inhabitant of the state where he runs for election.  (Interesting side-note: a member of the House does not have to be a resident of the district he represents.)

Because those qualifications are express provisions in the Constitution, State Legislatures may not change them.  For example, efforts to impose Term Limits on Congressmen have largely failed because it would take a constitutional amendment to change the qualifications to serve.  And that is a very steep hill to climb.

Additionally, the Decision whether a person meets the qualifications to take a seat in Congress is left to Congress and Congress alone.

Article I, section 5, states that “each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.”

This has been held to mean it is Congress who gets to determine if someone seeking a seat meets the age, residence, and citizenship requirements.  And they may exclude them if, in their judgment, they do not.  Additionally, it there is a dispute about the number of votes or legality of votes, it is Congress, not state officials, who will determine who won the election.

There are, however, limits to Congress’ power to Exclude elected representatives.

In 1967, Adam Clayton Powell, a Congressman who had represented Harlem for decades was reelected, but due to allegations of misuse of funds and unbecoming conduct (we used to care about such things), the House refused to seat him.  The Supreme Court found that Congress’ Exclusion power was limited to the qualifications specified in the Constitution and ordered he be seated.

The question then became whether once seated May a Congressman be Expelled?

Article I, Section 5 also provides that “each house may . . . with the Concurrence of two thirds, Expel a member.”

However, although there has not been a case directly on point, most scholars believe the power to Expel is limited to a Member’s conduct After he is seated Not to conduct that occurs Before his term begins.

The bottom line is that The Congress has no power to Exclude Mr. Gianforte even if he is eventually prosecuted for assaulting the hapless reporter.  And it is doubtful they could Expel him given that his body slam happened before his term began.