Below is today’s column on the aftermath of the Joe Wilson controversy. The threat of the Democrats to punish members using certain words to criticize the President raises some novel and unresolved constitutional questions.
When Does Disrespect Become Disorder?
This month, Rep. Joe Wilson (R-S.C.) achieved unique ignobility as the first Member of Congress to be formally admonished for an outburst during a presidential address. Indeed, Wilson’s most memorable words in his entire career will likely be his two-word rebuttal to President Barack Obama: “You lie!”
Wilson’s lack of personal control and proper decorum, however, may have a more lasting impact on the speech of his colleagues. House Rules Chairwoman Louise Slaughter (D-N.Y.) is warning Members that they will face punishment if they engage in improper forms of speech. Specifically outlawed are references to any president as a “liar,” “hypocrite,” “intellectually dishonest,” or to conduct by a president as “cowardly,” “giving aid and comfort to the enemy,” or involving “sexual misconduct on the president’s part.”
The House rules pit the inherent authority of Congress over its own affairs against the inherent rights of individual Members, particularly their rights of free speech and full representation.
The framers had few illusions of the type of people who often seek power and public acclaim. James Madison stated in The Federalist Papers No. 57: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”
The desire for a virtuous Congress has long since yielded to the more practical objective of maintaining an orderly Congress. The Constitution expressly leaves it to Congress to determine the rules governing the conduct and qualifications of Members. Section 5 of Article 1 states that each house of Congress “shall be the Judge of the Elections, Returns, and Qualifications of its own Members” and specifically allows each to “punish its Members for disorderly Behavior.” This included the power “with the Concurrence of two-thirds, [to] expel a Member.”
The use of the word “disorderly” captures the proper emphasis of rules restricting Members. The need to prevent disorder is different from preventing disrespect. Yelling during a presidential address causes disorder and is thusly a proper focus of discipline. However, like many matters of protected speech, the right to regulate depends on the time, place and manner of the restrictions. Under the First Amendment, words at one time or in one place may not be protected while the same words at a different time or place are protected. That should be the case with the words “you lie.”
Ironically, Wilson was not subject to the speech rules since the House was in joint session. However, the House reserves the right to enforce a particular rule: “a lawmaker shall conduct himself at all times in a manner which shall reflect creditably on the House of Representatives.”
In most prior cases, this rule has been used for the noncontroversial purpose of punishing Members who have been convicted or accused of criminal acts. Yet, the language is equally applicable to otherwise protected speech. The House rules go beyond bad conduct and encompass bad manners. While courts have overwhelmingly deferred to Congress in such matters, a challenge to a restriction on the content of legislative remarks could force an exception to this principle.
Wilson was properly sanctioned for screaming out during a presidential address. It was a rude and uncivil act that demeaned the entire Congress. However, he has a right to say that a president is lying. Indeed, presidents have lied throughout history on matters great and small. One of the most important functions of a Member of Congress in our system of checks and balances is to call a president to account for falsehoods.
If the president’s party can prevent a Member from referring to him as “intellectually dishonest” or “giving aid and comfort to the enemy,” the majority can effectively script Members’ speech through a process of elimination. The framers never envisioned such a level of choreographed or controlled speech. To the contrary, “sexual misconduct on the president’s part” can be — and has been — a basis for impeachment when such conduct leads to such high crimes or misdemeanors as lying under oath. If a president traded federal positions for sexual favors, it could also be the subject of impeachment. Yet, a Member revealing such misconduct could not refer to the “sexual misconduct” directly.
Some Members in the majority after the Wilson scandal have cited the rules of Parliament. The rules of the House incorporate Section 370 of Jefferson’s Manual, which states that members in Parliament are prohibited from “speak(ing) irreverently or seditiously against the King.” While there are many parliamentary traditions that would be worthy of duplication, this is not one of them. Members should be able to speak irreverently about the head of their government. Indeed, Parliament shows the utter lunacy of these rules by prohibiting certain forms of language like calling the prime minister a “liar,” but members routinely engage in rude outbursts and shout at the prime minister during question sessions. Parliament has it reversed: It should prohibit the outbursts while allowing members to speaking truthfully of their views of a prime minister. The former causes disorder while the latter is merely disrespectful. It is the shouting and catcalling that is out of place — not the frank expression of a member’s view.
None of this means that rules should not discourage the use of such words. Calling a president or another Member a liar is a juvenile habit. However, the House rules suggest that a Member can be punished for using these words, which may accurately describe the view of the Member. The fact is that a president can be a liar or a sexual deviant or both. In such cases, Representatives have not only a right but a duty to confront the executive and his party.
Securing judicial review of such rules may not be easy absent an actual enforcement against a Member. Of course, Members could trigger the rule by marching to the floor to proclaim, “The president is a lying, hypocritical, intellectually dishonest man who is giving aid and comfort to the enemy” — or some variation of that theme. None of that is true, of course, but sometimes a constitutional claim can only be found on the other side of calculated rudeness.
Wilson picked the wrong time and place to cry “You lie!” and was worthy of admonishment. However, when given in the course of legislative debate, punishment for such speech puts the lie to the free speech guarantees in our Constitution. Congress should focus on disorder and let voters focus on decency among its Members.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University.
Roll Call Column — September 24, 2009