Daniel Webster had a great deal of trouble with his personal finances. While a senator, he maintained a busy law practice to supplement his congressional salary. On occasion, he took clients into the Senate Chamber to watch as he advocated their legislative interests. In the midst of a crucial 1833 battle to recharter the Bank of the United States, he reminded the bank’s president that it was time for his retainer to be “refreshed.”
In those days, before any formal prohibition on senatorial conflicts of interest, most of his Senate colleagues disdained Webster’s blatant tactics, but a significant number saw nothing wrong with representing the interests of private clients before the federal agencies whose appropriations they controlled. By the time of the Civil War, however, the expansion of those appropriations and the federal government’s growing regulatory role increased opportunities for corruption. Consequently, in 1864, Congress outlawed this practice and barred those found guilty from holding federal office.
In 1905, for the first and only time, two senators were convicted of violating the 1864 statute. Oregon’s John Mitchell died as the Senate prepared expulsion proceedings. Kansas Senator Joseph Burton, found guilty of taking money to help a St. Louis company scuttle a U.S. Post Office mail fraud investigation, avoided Senate action pending his appeal.
On May 21, 1906, the U.S. Supreme Court upheld Burton’s conviction, but ruled that the 1864 law’s bar against federal officeholding did not automatically vacate his Senate seat or require the Senate to expel him. Only the Senate could determine its members’ eligibility for continued service. Within days Burton resigned to begin a six-month prison term.
Several weeks earlier, a colorful and forthright Texas senator named Joseph Bailey expressed a view he believed common among other members. Speaking 63 years before the Senate adopted its first ethics code, he said “I despise those [senators] who think they must remain poor to be considered honest. I am not one of them. If my constituents want a man who is willing to go to the poorhouse in his old age in order to stay in the Senate during his middle age, they will have to find another senator. I intend to make every dollar that I can honestly make, without neglecting or interfering with my public duty.”
Baker, Richard Allan. “The History of Congressional Ethics,” in Representation and Responsibility: Exploring Legislative Ethics, edited by Bruce Jennings and Daniel Callahan. New York: Plenum Press, 1985.