- The Washington Times - Saturday, May 29, 2021

Republicans looking to challenge House Speaker Nancy Pelosi’s fines for violating her security screening and mask mandates may have gained ammunition this month when the sole Democrat to face a fine — Rep. James E. Clyburn — had his penalty expunged.

The House Ethics Committee’s decision to let Mr. Clyburn, the third-ranking Democrat, off the hook left Republican lawmakers scratching their heads. They said the disparity in punishment adds to their complaints that the fines are insulting and unconstitutional.

Rep. Andrew S. Clyde, a Georgia Republican who was fined, said his case is similar to Mr. Clyburn’s. He said the fact that the Democrat’s appeal was approved while his own was denied suggests a double standard, and he fired off a letter to the Ethics Committee demanding it turn over all documents and reconsider his appeal.

“I welcome the Committee on Ethics to reconsider my case based on their most recently established precedents. Should they choose not to reconsider, I am eager to have my day in court to stop Democrats from further trampling on our cherished Constitutional rights,” Mr. Clyde told The Washington Times in a statement.

Other Republicans are likely to join Mr. Clyde, and they could be plowing new legal ground.
Experts say the case wouldn’t be frivolous but might be a tough sell for courts, which likely will be reluctant to police a fellow branch of government and said in an 1880 ruling that Congress does have the power to fine its members.

But according to a 2016 Congressional Research Service report, fines had always been used as restitution, not as pure punishment for misbehavior.

Mrs. Pelosi imposed the mask mandate last summer. In January, the House adopted fines as punishment: $500 on the first offense and $2,500 for a second breach.

After Mrs. Pelosi in January ordered all lawmakers to be screened by U.S. Capitol Police before entering the House floor, the House adopted a $5,000 fine for a first offense and $10,000 for a second.

Lawmakers cannot use official funds or campaign cash to pay the fines, and the House clerk is authorized to deduct the amount from their salary.

Republicans argue that the fines are in tension with two provisions of the Constitution. The first prohibits the arrest of lawmakers conducting business, and the second — the 27th Amendment — prohibits changing a member’s pay during a two-year Congress.

Under the Republicans’ thinking, throwing up a roadblock to a lawmaker trying to reach the floor to vote could run afoul of the privilege against arrest. And fining a lawmaker by docking pay could be categorized as a change in pay.

The House Ethics Committee declined to release data on fines and brushed off questions from The Times about the legal basis for the punishment.

“No comment,” said Tom Rust, the chief counsel at the committee.

The committee has publicly acknowledged seven cases, six of them involving Republicans and the other involving Mr. Clyburn. Two appeals have been granted, one for Mr. Clyburn and another for Rep. Harold Rogers, Kentucky Republican, leaving Republicans the targets in the five known cases in which fines are still active.

More cases are in the offing.

A series of Republicans defied the mask mandate this month, citing Centers for Disease Control and Prevention guidance saying people vaccinated for COVID-19 may resume normal activities and don’t need to wear masks, even inside. The House, led by Democrats, has not adopted that scientific consensus, spurring the protest by a handful of Republicans.

Rep. Brian Mast, Florida Republican, is one of those who defied the mask rule.

“I am appealing Speaker Pelosi’s $500 fine because I was in full compliance with the CDC guidance and it is unlawful,” Mr. Mast said in a statement. “It has never been about following the science for Speaker Pelosi. It has always been about power and control.”

The statement also labeled the fine “unconstitutional.”

Mr. Mast’s office didn’t respond to an inquiry on the matter.

Experts said they doubted a challenge to the fines will pass muster with the courts.

“It’s a very long shot,” Stanley M. Brand, a former House general counsel, told The Times.
Mr. Brand, who co-founded the firm Brand Woodward Law and is a distinguished fellow in law and government at Penn State University, said the argument over pay is a tough sell because the fine would be portrayed as a penalty, not a diminution of salary.

Seth Barrett Tillman, a lecturer in law at Maynooth University in Ireland, also doubted the salary argument. He said in the panoply of punishments Congress has for its members, fines make more sense.

“My own view is that fines are preferable than kicking a person off the floor or temporarily suspending them because that takes away the voting power of their constituents,” Mr. Tillman said.

If Republicans do pursue cases, he said, the fact that fines have been upheld only on them could be important.

“If they can make a case, the Republicans, that there’s bias or pretext, they don’t really want to enforce these rules for the reason they announce, they’re just doing it to screw people over, that would be a possible line of argument,” he said.

Indeed, House Republicans say Mrs. Pelosi was seen skipping the magnetometer in early February but was never fined. The sergeant-at-arms said he would fine any lawmaker, including the speaker, who is flagged by police, but no officer reported a violation by Mrs. Pelosi.

Congress has long claimed the power to police its members’ behavior, and censure and expulsion have been used since the earliest days. But it turns out that the use of House fines is a relatively new and rare punishment.

The Congressional Research Service said it couldn’t find records of fines before 1969, when Rep. Adam Clayton Powell was docked $25,000 — well more than half the annual salary of a member of Congress at the time — for a number of offenses, including misusing money from official accounts.

The CRS said every fine it identified at the time of its 2016 report had been used for restitution or repayment, such as where a lawmaker misused money from official accounts. That’s not the situation with the mask and magnetometer fines.

Still, the CRS said there’s no constitutional reason why fines couldn’t be punitive rather than for restitution.

Mr. Tillman said even if Republicans don’t prevail on a legal challenge, there may still be value by bringing the fight.

“It might be what Republicans are thinking is the case is a winner for political purposes because it shows how Republicans are being victimized,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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