On Friday, Rep. George Santos (R-N.Y.) was expelled from the House of Representatives. The vote was 311 to 114. Democrats overwhelmingly supported booting Santos, whose many misdeeds have been described in both a House Ethics Committee report and the media.
Some have wondered why anyone would vote against booting Santos. The partisan breakdown of the “nay” votes tells part of the story.
Only two Democrats voted against the resolution, whereas 112 Republicans did. Democrats likely see a partisan advantage in being clearly against the odious Santos. Republicans, meanwhile, face an immediate cost for dumping Santos: a dependable vote on the House floor. House Republicans have repeatedly struggled to build working majorities with their razor-thin margin.
Lurking beneath the GOP’s partisan calculations, however, are at least three philosophical considerations. The first one is that voters sent Santos to the House and it is on them to remove them at the next election. The GOP has been taking a populist “We the People” tone for some years, and voting to dump Santos might be viewed as a betrayal of populism.
The second perspective is that Santos has not been convicted of anything in a court; nor had he made war against the United States. This makes him unlike the other five House members who have been expelled, and as such sets a new precedent.
Matt Glassman of the Government Affairs Institute at Georgetown University said this position reflects two issues with Congress: “way too much deference to precedent, and way too much deference to the judiciary.”
“Both reinforce the increasing lack of agency — and sense of responsibility — among [m]embers…. part of [the] purpose of the expulsion clause is to allow the House to defend its’ own dignity,” he continued.
True.
Beyond the precedential concern, however, there may be an added problem of the Santos expulsion breaking a bulwark against abuse of the House’s power to expel. In short, if the House behaves as if it is free to scrutinize members and boot them out, then what is to stop partisan majorities from doing that to partisan minorities? Insisting on waiting for outside judicial determination, irksome though it might be, does split the power to decide between Congress and an external branch that is far less political.
But let’s also be candid here: Waiting on a court also means the GOP can milk George Santos’s vote for many more months while the wheels of justice slowly turn.
Worries about expulsion powers are not ludicrous. We are in a time of rising institutional hardball, wherein partisans stretch and break norms, rules and laws, as George Washington University Professor Sarah Binder has pointed out. Just look at how the Republicans distorted the text of the Electoral Count Act to try to delay or derail the transition to a Biden presidency.
On the other hand, the House has rarely abused its power to overturn states’ decisions as to who won elections. The last time that occurred was in 1985, when Democrats decided that Indiana had been wrong to declare Republican Rick McIntyre the winner of an election and replaced him with Democrat Frank McCloskey.
In 2021, two contested election cases were lodged with the Committee on House Administration. One involved a Democrat griping she’d been robbed of victory; the other featured a Republican. In both instances, the House respected the states’ determinations.
Regardless, surely there would be no harm for the House of Representatives to collectively ponder how it can ensure that the expulsion power does not become another tool in the partisan struggles for power. Perhaps the CHA could study this topic and work within the chamber to create a broadly held shared understanding of the proper grounds for expulsion.
Of course, expulsion always will involve political calculations, but that does not preclude further clarifying the bounds within which the debate over expulsion occurs. Indeed, this is what the CHA has done over many decades in creating a norm of deference to states’ election decisions.
Kevin R. Kosar is a senior fellow at the American Enterprise Institute. He is the co-editor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform” (University of Chicago Press, 2020). He hosts the Understanding Congress podcast.