When does Congressmen officially become a member of Congress? When they are elected? Or when they have taken the oath of office. Perhaps, you may be thinking it really doesn't matter. Yet, this has been a subject of great debate over the years. One question that came up during James Madison's administration was when one of his appointed District Attorneys had violated the Emoluments clause also known as the Ineligibility clause by being elected to the U.S. Congress while still holding his position as a United Stated District Attorney. The Emoluments clause is a provision in Article 1, Section 6 Clause 2 of the Constitution that puts a limit on the employment of member of congress, but not the executive branch.
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Our framers had good reason to include the Emoluments clause. They were painfully aware of the system of "royal influence" in England, where kings would "buy" the loyalty of Members in Parliament with appointment to lucrative positions. Our founding fathers, wanted to limit this system of patronage and it's corrupting effects. At the 1787 Constitutional Convention, it was James Madison whose proposal "that no office ought to be open to a member, which may be created or augmented while he is in the legislature" was eventually accepted. Now, his administration was caught in the middle of a constitutional crisis over this very clause. In 1816, Samuel Herrick of Ohio, a US District Attorney was elected to the House of Representatives, but was not allowed to take his seat pending the conclusion of a challenge to his election. In President Madison's annual address to Congress that year, he wrote about Emoluments and it's impact on the station of Attorney General. The Attorney General's work had become increasingly more difficult over the years, but the salary only slowly increased since 1809 when it was $3000 per year. Furthermore, because of his appointed office he was not allowed to also be senator or representative which would bring in additional pay. Perhaps, it was the current debate over U.S. District Attorney Samuel Herrick that gave rise to these thoughts. Congress was currently questioning his eligibility to sit in the seat of a Congress due to conflict of being elected while still a District Attorney. Perhaps, Madison feared that members of the Attorney General's office would leave in droves given the imbalance of respect with responsibilities. Nevertheless, in his final address, Madison urged Congress to consider including for those in the station of Attorney-General, a provision for the "usual appurtenances to a public office". That is the legal right to obtain a worthy seat in public office. In Herrick's case that meant as Congressman, in the case of the Attorney General, that meant better pay.
"The course of experience recommends, as another improvement in the executive establishment, that the provision for the station of Attorney-General, whose residence at the seat of Government, official connections with it, and the management of the public business before the judiciary preclude an extensive participation in professional emoluments, be made more adequate to his services and his relinquishments, and that, with a view to his reasonable accommodation and to a proper depository of his official opinions and proceedings, there be included in the provision the usual appurtenances to a public office."Regarding salary, no action was taken. In fact, it wasn't until 1853, that the salary of the Attorney General was placed on par with that of the secretaries and the Post Master General. Regarding Samuel Herrick, the case was taken up by the House Committee on Elections and in 1817, a decision and ruled that one does not become a Member of Congress for purposes of the Emoluments clause until the oath of office had been administered. In Herrick's case, since he had not taken the oath of office until he left his District Attorney's position, he was eligible to be seated in Congress. Since, the election itself did not constitute membership, Herrick was not subject to the Emoluments clause.
Title of Nobility Clause
Please note that the Title of Nobility Clause (Article 1, Section 9 Clause 8 of the Untied States Constitution) is also known as the Emoluments clause. This clause prohibits the federal governments from granting titles of nobility, and members of the government from receiving gifts, emoluments, offices or titles from foreign states without the consent of congress. This clause has been in the news lately (2017) due concerns over the extensive business and real estate dealings of President Donald Trump especially those dealing with government agencies in other countries. If you came hear looking for information on that clause, I apologize but thanks for visiting my page anyways.
http://www.presidency.ucsb.edu/ws/index.php?pid=29458
https://en.wikipedia.org/wiki/Ineligibility_Clause
https://en.wikipedia.org/wiki/Samuel_Herrick_(politician)
http://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1912&context=hlr
https://www.jstor.org/stable/2140887?seq=3#page_scan_tab_contents
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