Result: Censured ("Denounced")
In 1978, Herman E. Talmadge (Democrat-GA) was an influential and respected senator. Initially elected to the Senate in 1956 as a proponent of states' rights, he had gained national recognition and esteem through his work on the Watergate investigation. Yet, despite Talmadge's political stature, the 1970s were a decade of personal suffering for him. His son had drowned in 1975 and his wife Betty had divorced him two years later. During the litigation over the divorce property settlement, newspaper accounts of the trial revealed a number of financial irregularities by Talmadge. When it became apparent that in five years he had written only $600.00 in checks for cash, the senator explained that he received most of his pocket money in small amounts of cash from constituents. Betty Talmadge had testified in court that her husband kept large amounts of cash in an overcoat at their home to pay for all household expenses. She also described a large stock transaction that had never been disclosed as required by law.
The Senate had changed considerably as an institution during Herman Talmadge's tenure. When he arrived in 1957, there were few laws or rules regulating senatorial conduct. Since the Thomas Dodd censure case in 1967, however, the pace of reform had quickened. During the 1970s Congress passed more government reform legislation than at any other time in history. Following the Dodd censure case, the Senate in 1968 adopted standards of conduct and financial disclosure requirements for members and some Senate employees. This action was followed by passage of the 1971 Federal Election Campaign Act, which required reports on campaign contributions and expenditures and set monetary limits on media advertising.
In 1977, the Senate changed the name of the Select Committee on Standards and Conduct to the Select Committee on Ethics and formalized the mechanism for managing serious complaints. The new Ethics Committee then published its rules of procedure for responding to complaints. The multi-stage process consisted of a preliminary inquiry, initial review, and investigation with trial-type hearings. The committee also created procedures for considering specific subjects, such as sensitive materials or whether there should be media coverage of hearings. If the committee determined that a case warranted the use of outside counsel, it had the authority to hire one. The committee would then report its conclusions and recommendations to the Senate. The Talmadge case was the first conducted by the committee under these procedures.
The allegations against Herman Talmadge were the most serious made against a senator since Thomas Dodd's censure by the Senate in 1967. In fact, many of the regulations Talmadge was charged with violating had not existed at the time of the Dodd censure and had been established in response to that case.
Statement of the Case
Soon after the Select Committee on Ethics learned of the newspaper reports regarding Herman Talmadge, it determined that a preliminary inquiry was needed, in light of additional press accounts that the senator had accepted excessive reimbursement from the Senate. Then, on May 24, 1978, the senator asked the committee to review his practice of accepting small cash gifts. The committee appointed a special counsel and unanimously agreed that there was sufficient evidence to justify moving to the next stage with an initial review. In response to the newspaper articles alleging that the senator had submitted incorrect vouchers and received overpayments, both Talmadge and the committee conducted audits of his office accounts. Based on the results of the audits, Talmadge repaid the Senate $37,125.90 for excess reimbursements he had received between 1972 and 1978. On December 18, 1978, after studying the special counsel's initial report, the committee voted to conduct a full investigation of five allegations, the third stage of the process.
Prior to the hearings, Talmadge filed a number of legal motions. The most significant related to an issue that had not been resolved during the Dodd inquiry, the standard of proof applicable to evidence. Talmadge urged adopting the standard used in criminal cases, that a charge must be proven "beyond a reasonable doubt," but the committee determined that it would require only "clear and convincing evidence," the same standard used in civil cases. The senator also sought to exclude documents that had been stolen from his office by his former employee Daniel Minchew, but the committee denied this motion.
Public hearings into the charges against Herman Talmadge began on April 30, 1979, and concluded on July 12. A key committee witness was the senator's former administrative assistant, Daniel Minchew, who was the subject of a related criminal investigation. Although the committee had serious problems with Minchew's credibility, the members believed his testimony could not be totally discounted. Minchew testified that, following the senator's instructions, he had opened a secret account at Riggs Bank in which he had deposited reimbursement checks and campaign contributions. These campaign contributions were not reported as required by law. According to Minchew, proceeds from the account went to Herman Talmadge, his wife, and his son. Minchew himself had received $18,000 from the account, which he claimed was repayment for expenditures he had made on the senator's behalf. The committee members, however, believed that he had taken the money for his personal use. Both Betty Talmadge and Minchew testified that the senator habitually carried $100 bills, but Talmadge could not remember the names of any of the contributors who he claimed provided the small cash donations he used as spending money.
Because the committee had determined that the senator's testimony was essential, Talmadge agreed to appear at the hearings and also called his own witnesses. In defending his actions, Herman Talmadge stated that his office had given financial matters a "low priority," that he was unaware of the over-reimbursements, and that he had learned of the Riggs account only in 1978. He attacked the veracity of his wife and the former employee.
Response of the Senate
The committee filed its report with the Senate on October 4, 1979, finding violations or failures of administrative oversight in four areas, although the report's carefully worded conclusion failed to specify who committed the offenses. Other sections of the report, however, went considerably further in attributing to Talmadge direct knowledge or participation in the misconduct. The committee found evidence of the following wrongdoing: (1) between 1973 and 1978, the senator had submitted vouchers for and received $43,435.00 in excess reimbursements (since the vouchers were signed either by autopen or by staff members, the committee concluded that the senator had failed properly to supervise their preparation); (2) Talmadge's required financial disclosure reports were inaccurate for the years 1972 to 1977; (3) campaign finance reports mandated by the Federal Election Campaign Act were filed late for 1973, and inaccurate reports were filed in 1974; and (4) more than $10,000 in campaign funds were not reported, were deposited by the senator's campaign chairman in a bank account, and were used for noncampaign purposes, in violation of both campaign laws and a Senate rule.
Based on these findings, the committee submitted a resolution stating that the senator "knew, or should have known," about these acts and was therefore responsible for them through "the gross neglect of his duty" to oversee the administration of his office. Because this conduct tended "to bring the Senate into dishonor and disrepute," the committee voted unanimously to recommend that Talmadge be "denounced" and required to reimburse the Senate for any outstanding overpayment.
Resolutions addressing misconduct in previous cases had recommended that the Senate "censure" or "condemn" a colleague, but Herman Talmadge pressed the committee to use the term "reprimand." While not accepting this alternative, the committee explained that it had specifically avoided using the words "censure" and "condemn" because the members believed Talmadge's transgressions were substantially different from those in earlier cases. They chose words, therefore, that specifically did not depend on "analogy to dissimilar historical circumstance for interpretation." The vice chairman of the committee, Harrison Schmitt (Republican-NM), had urged the use of the word "censure." Although his motion was defeated, he added his separate views to the report. The Capitol Hill newspaper, Roll Call, reported that the Senate parliamentarian was confused about the precise meaning of the term "denounce," stating, "It's not censure and it's not reprimand. . . . Where it falls [between the two] I sure don't know."
In addition to proposing its resolution, the committee referred a number of possible violations of criminal law to the U.S. attorney general, but the Department of Justice issued no indictments against Herman Talmadge. The committee further recommended reforms in Senate accounting procedures, including bookkeeping, voucher procedures, use of autopens to sign vouchers, and internal audits for suspected abuse. The report also suggested that rules be adopted to define "official" and "reimbursable" expenses.
When the Senate considered the committee's proposed resolution on October 11, 1979, Talmadge was permitted to have his attorney present. After the committee chairman, Adlai E. Stevenson III (Democrat-IL), reported on the investigation, Senator Schmitt reviewed the evidence and reiterated his arguments that censure was the appropriate term to use in this case of serious misconduct. In all but two previous cases, the Senate had used the word censure. The two exceptions, Hiram Bingham and Joseph McCarthy, were "condemned" by the Senate, but that word, Schmitt noted, "seems to have been treated by historians as tantamount to censure." Still, if the Senate adopted the committee's term, "denounced," he declared, "the strongest possible meaning" should be placed on the punishment. In response to senators' questions, Chairman Stevenson stressed that the resolution did not attribute knowledge of the wrongdoing to Talmadge but rather that "he knew or should have known."
The Senate debate demonstrated that some members still had misgivings about the Ethics Committee's process. Thomas Eagleton (Democrat-MO), for example, commented that, while the new procedures constituted an improvement, they were very time consuming and forced committee members to serve as both judge and jury at trial-type hearings. He recommended appointing an independent outsider to conduct the hearings.
No amendments were proposed to the resolution, which the Senate debated for only one afternoon and then adopted by a vote of 81 to 15. Herman Talmadge had not contested the resolution, but after it passed, he rose and spoke. Acknowledging that he had been negligent in overseeing his office and campaign finances, he emphasized that neither the committee nor the Senate had found that he had engaged in intentional wrongdoing and that censure had not been sought. While rededicating himself to his fellow senators and to the people of Georgia, Talmadge also stated his intention to continue to serve in the Senate for a "number of years to come." When he finished, other senators expressed their friendship and support for him.
A traditional explanation by scholars and senators for the institutional reluctance to discipline individual members has been that the voters provide the final judgment. Herman Talmadge believed this and during the investigation declared that the charges would not affect his reelection. "The ultimate ethics committee," he maintained, "are the people of Georgia." When Talmadge sought reelection in 1980, however, he faced significant opposition in the state's Democratic primary for the first time in 24 years. Receiving less than 50 percent of the vote, he succeeded in winning a runoff against the state's lieutenant governor. After a fall campaign in which Talmadge's ethical conduct was a significant issue, he was defeated by the Republican candidate, Mack Mattingly. Later, in his memoir, Talmadge wrote that he regretted not having fought for full exoneration on the Senate floor.
The Talmadge case exemplifies the evolution of reforms initiated immediately before and after the Dodd case. Thomas Dodd's legal challenges had resolved key issues, establishing the committee's jurisdiction and affirming the general process. In the decade between the Dodd and Talmadge cases, the Ethics Committee was created and a code of conduct adopted, making it possible for the first time to evaluate senators' behavior against clear standards. Perhaps these changes explain the relatively brief Senate floor debate over Talmadge.
The committee resolved two other important issues during the Talmadge case. It established the standard of evidence for its work as comparable to that used in civil rather than criminal cases and set the precedent that, with or without direct knowledge, senators have ultimate responsibility for any wrongdoing related to their public office.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.