The House of Representatives may not have seen the last of Ozzie Myers.
If the voters of South Philadelphia decide to reelect Myers next month despite his expulsion from the House and his conviction on bribery charges, the House could face a delicate and untested constitutional question. Who has the final word on who shall represent citizens in the House of Representatives? The people who elect a member or the legislative body that polices the conduct of its members?
It seems clear from the precedent set in the U.S. Supreme Court's decision in the Adam Clayton Powell case that Myers will be eligible to take the oath and be seated if he is reelected. But could the House then expel him again?
In any case, the House has established a new way of dealing with members convicted of a felony. In many past cases, when a jury returned a guilty verdict against a U.S. representative, the House waited patiently for appeals to run out and hoped the member would resign or be defeated. The new approach may be invoked again soon if other House members caught in the Abscam net are also convicted.
In 18th century England, a member of Parliament named John Wilkes was expelled three times and each time his constituents sent him back to the House of Commons. Finally in 1782, his efforts to have the expulsion resolutions expunged were approved. The prior actions were "subversive of the rights of the whole body of electors of this kingdom," it was decided.
In this country, the federal courts have never ruled on the conflict between the people's right to select their representatives and the Congress' right to expel a member. The Constitution offers support for both sides, so it is likely that political reality will decide the outcome of any future debate about Myers' suitability to sit and vote in the House.
Several participants in the Myers' expulsion debate, as well as independent legal experts, said yesterday they believe the House has the right to expel Myers again, but that such a move probably would not be inititated.
E. Barrett Prettyman Jr., special counsel to the House ethics committee for the Myers case, said the committee had not discussed the possibility, but added: "In my personal view the House does have the pure power to expel him again."
The Constitution states in Arlticle I, Section 5 that "Each House may . . . punish its members for disorderly behavior and, with the Concurrence of two-thirds, expel a Member."
However, Article I, Section 2 says that the House "shall be composed of Members chosen every second year by the People of the several states."
The only qualifications are that a member be 25 years old, a citizen of seven years and a resident of his state.
In the Powell case the Supreme Court ruled the House had erred in refusing to seat the Harlem congressman after he was duly elected in 1966. "The House has no power to exclude a member-elect who meets the Constitution's membership requirements," the court held.
In a footnote the opinion by Chief Justice Warren Burger added: "We express no view on what limitations may exist on Congress' power to expel or otherwise punish a member once he has been seated."
The opinion is rich, however, in examples of precedents like the Wilkes' case in England, and excerpts from the founding fathers' debate during the constitutional convention of 1787. The court, for example, took special note of the significance the founding fathers placed on the two-thirds requirement for expulsion.
James Madison "observed that the right of expulsion . . . was too important to be exercised by a bare majority of a quorum; and in emergencies [one] faction might be dangerously abused," the opinion said.
One constitutional authority suggested yesterday the Powell decision protects the people's right that their representative be seated in Congress. But the extra protection of the two-thirds vote requirement showed that the House can still override wishes of the constituents.
Rep. Wyche Fowler (D-Ga.), a member of the ethics committee, said yesterday he thought many members would feel that if the voters return Myers, knowing he admitted taking $50,000 in cash from an undercover FBI agent on videotape, there would be little enthusiasm for moving to expell him again.
"There is an argument that it's not simply a constituent matter," he added. "The United States Congress is not a ward-heeling institution of single-member districts. Myers' vote would affect the nation as a whole."
Even though Myers "sold his vote," Fowler said he thinks many members would feel the 37-year-old longshoremen has been punished enough by the first expulsion.
Rep. Charles Bennett (D-Fla.), chairman of the ethics committee, said yesterday that he too felt personally a second expulsion vote would "raise serious questions of basic justice, whether he hadn't paid the penalty already."
Rep. William M. Thomas (R-Calif.), a freshman member of the committee who made an eloquent floor speech Thursday urging Myers expulsion, said yesterday "there's no question to me constitutionally that we could kick him out every time if he's reelected. But practically, most members will feel it's sufficient that his constituents know how we judged him before the election."
He added, though, that he would lead a fight to expel Myers if he is sentenced to prison and doesn't resign immediately after his court appeals are exhausted.
In the past, conduct similar to Myer's did not produce expulsions. In late 1971, for instance, Rep. John Dowdy (D-Tex.) was convicted of accepting a $25,000 bribe.
A few months later, the House ethics committee recommended only that he not be allowed to vote. The resolution never came to a vote because the Rules Committee refused to act on it.
Harsher sanctions would be inappropriate until final judicial rulings on the case, the committee said.
In recent years, some members have resigned, so the committee and the House have not had to deal with the troublesome issue. Rep. Charles Diggs (D-Mich.) for example, was convicted in a payroll kickback scheme in October 1978. He was reelected, sentenced to a prison term and served until his appeals failed.
The House finally censured Diggs in 1979. Bennett said the Diggs case was different from Myers because Diggs hadn't "bartered his office."