The anticipated expulsion vote for Rep. George Santos [R, NY] provides us an opportunity to consider why a chamber of Congress should be able to expel a member and whether the House’s process is designed to achieve a just outcome.
A Brief History of Expulsion, Censure, and Exclusion
The Constitution provides each chamber of Congress the power to set their own rules and requires a two-thirds vote to expel a member from a chamber. Expulsion is the most stringent punishment, historically much more common in the Senate than the House. CRS identified 20 instances of expulsion, with 17 concerning disloyalty to the Union (1861-1862), two related to corrupt behavior (post-1980), and one concerning disloyalty to the United States (1797).
Members who engage in misconduct also face censure and reprimand, but action taken by the full House or Senate is uncommon. A 2016 CRS report identified 23 instances where the full House voted in favor of censure and 10 instances of reprimands, although those numbers will have to be updated in light of events over the last few years. (Wikipedia has an up-to-date list.) A 2008 CRS report identified eight instances where the full Senate voted in favor of censure, with the most recent in 1990. The obvious conclusion is that CRS should update its reports, er, that the chambers use other methods to discipline members.
Ethics proceedings are lengthy and appear to be unduly drawn out, giving members an opportunity to resign, to decline to run again for office, and to be defeated at the polls. Also, at times a chamber will refuse to seat a member after an election. This practice, known as exclusion, is rare, and has been abused by the House.
The Current Ethics Processes
Current practices have ethics matters go first before the House and Senate Ethics Committees, which is a bit like having your brother-in-law as your judge and jury. The committees are equally divided between members of both parties, which in effect means that either party has a veto on whether an ethical inquiry goes forward. At times in recent history, the ethics process has stopped entirely because party loyalty is more important than ethical accountability. This has allowed flagrant criminality to go undeterred and unpunished, with only investigation by the Department of Justice as a backstop.
Justice Department vs. Congressional Ethics Processes
This takes us to a crucial distinction. The Justice Department investigates criminal activity. It is an organ of the Executive branch and its incentives are to pursue slam-dunk cases of members violating federal law. We can imagine all sorts of problems that arise from the Executive branch investigating the Legislative branch. To convict, prosecutors must persuade a jury beyond a reasonable doubt that a defendant has committed a crime. Someone convicted of a crime can go to jail, possibly for the rest of their life.
Ethics Committees’ Role and Limitations
The House and Senate ethics processes are not criminal proceedings. The worst that can happen is that a member loses their job. The juries and prosecutors are the colleagues of sitting members, first those inside the ethics committees and then the full chamber. You better believe that they give their peers every benefit of the doubt. The purpose of the House and Senate ethics processes is to enforce the chamber rules.
The chambers have an interest in ensuring that members engage with one another in an orderly way. They also have an interest in keeping member behavior within certain bounds, including avoiding significant criminal acts and other behaviors that, while not criminal, make the members look bad. For the protection of the chamber, the ethics process need not wait if there’s an obvious danger or sufficient reason to act. The process due to a member under suspicion is whatever process the House or Senate rules provide.
At present, the House and Senate rules provide two avenues for addressing allegations of misconduct. The first is the slow investigatory processes of the House and Senate Ethics committees, designed to protect the reputations of individual members and give them every benefit of the doubt. It’s hard to get the ethics committees to even start an investigation, and the entire process is kept highly confidential. Members of your own political party who you do business with every day must be persuaded to punish you. This is as favorable a setting to those accused of misconduct as you can possibly imagine. The higher up you rise, the more protected you are.
Alternative to Ethics Committees
The second process to address allegations of misconduct is the bringing of privileged resolutions to the floor. This is an effort to route around the quagmire of the ethics committees, but it is higher stakes. Specifically, members don’t like dirty laundry being aired in public and may move to informally punish the members who bring these accusations. Which brings us to Rep. George Santos.
The Case of Rep. George Santos
This past week the House Ethics Committee released a report regarding Rep. George Santos that reached no conclusions regarding his behavior. Nonetheless the Committee urged members to pay attention to the findings of its investigatory subcommittee, which concluded that “at nearly every opportunity, [Rep. Santos] placed his desire for private gain above his duty to uphold the Constitution, federal law, and ethical principles.”
The subcommittee found:
Representative Santos sought to fraudulently exploit every aspect of his House candidacy for his own personal financial profit. He blatantly stole from his campaign. He deceived donors into providing what they thought were contributions to his campaign but were in fact payments for his personal benefit. He reported fictitious loans to his political committees to induce donors and party committees to make further contributions to his campaign — and then diverted more campaign money to himself as purported “repayments” of those fictitious loans. He used his connections to high value donors and other political campaigns to obtain additional funds for himself through fraudulent or otherwise questionable business dealings. And he sustained all of this through a constant series of lies to his constituents, donors, and staff about his background and experience.
What a guy. In theory, the next step would be for the investigatory subcommittee to bring formal charges via a Statement of Alleged Violations, “which would then be subject to a lengthy trial-like public adjudication and sanctions hearing by the Committee, after which the Committee can make a recommendation to the full House.” Remember, this is a slow moving process. It would be even slower, except former House Speaker McCarthy publicly urged the committee to act quickly, which itself is an astonishing direction from a party leader to a supposedly independent committee.
The House already has voted twice on expelling Santos, once in May after he was indicted and again in November, but a new effort is more likely to succeed, especially since an expulsion resolution, H.Res. 878, was introduced on Friday by the Chair of the Ethics Committee. That’s odd, right? The Ethics Committee didn’t reach a conclusion, but the chair of the committee is offering an expulsion resolution…
Under normal circumstances it would take many months for the House Ethics Committee to hear evidence, deliberate, and make recommendations concerning what to recommend regarding Rep. Santos. Even after the deliberations conclude and the committee drafts a report, Rep. Santos would be given an opportunity to review the findings before they are sent to the House of Representatives.
At this point, one of two things often happens. On one hand, it may be election season, and the member under investigation either loses reelection or chooses not to run. Yes, a deux ex machina that takes members off the hook for an unpleasant vote. On the other hand, the member, after reading the report, may choose to resign. Should the member depart, the House Ethics Committee has a policy to not release its findings. The now former-Member walks away without a damning report being hung around their neck. This kind of “courtesy” allows former members to have their wrongdoing called out publicly. Many of them often go on to serve in other high offices or continue working to influence Congress.
For example, then-Rep. Nathan Deal, faced allegations of using his congressional position to benefit his auto salvage business and misusing House resources. He apparently resigned to prevent the release of a report by the House Ethics Committee. He was subsequently elected governor of Georgia, where he purged the state’s independent ethics commission when they investigated his apparently crooked dealings and began discussing subpoenas. The resulting litigation saw the former employees receiving some compensation for their unlawful firing, but there was no accountability for Governor Deal. The only bright spot in this story is that the House’s independent ethics watchdog, the Office of Congressional Ethics, released its findings into then-Rep. Deal after his resignation, which is how we know what they found.
This is why it’s notable with Rep. Santos that the OCE sent a report to the House Ethics Committee on April 21, 2023, finding substantial reason to conclude that Rep. Santos broke a number of laws and ethical rules. OCE reports that make findings of misconduct must be released even when the House Ethics Committee does not act and those OCE reports can be released after a member resigns. Based on the Ethics Committee’s carping in their report about the OCE, perhaps OCE didn’t have faith that the Ethics Committee would ever investigate and publish their findings on Rep. Santos.
The Office of Congressional Ethics
The Office of Congressional Ethics was created because of the shenanigans at the House Ethics Committee. Folks with long memories may recall that after the House Ethics Committee voted to hold House Majority Leader Tom Delay and others accountable for involvement in a money laundering scheme, the Chair of the Ethics Committee was purged by Republican leadership along with senior staff on the committee. There were a number of other scandals around that time, plus revelations a few years later that the then-Speaker of the House Dennis Hastert sexually abused children and was convicted for structuring payments to hide it. The Ethics Committee missed that disturbing behavior and swept a culture of corruption under the rug.
This has gotten dark, hasn’t it?
Current Situation and Challenges
The truth of the matter is that pretty much every member of the House of Representatives likely has concluded that George Santos is unfit for office. But Santos also was needed during the fight over who would serve as speaker and to pass legislation supported by his party’s leadership. Which is how we get here.
Should the House have afforded Santos a process to defend himself? Surely the answer must be yes.
Did the House afford him the full process to defend himself? The due process is whatever the House says it is. Bringing a privileged resolution could be an appropriate process, should the House decide that it is. (It said “no,” twice.) Having the House Ethics Committee review the matter and make a recommendation could be an appropriate process. (That seems unlikely.) Is having the Ethics Committee Chair offering a resolution to expel Santos due process? Sure, but it’s not a good process.
The House’s ethics process is too slow, too secretive, too easily controlled by the parties, and too favorable to those accused of misconduct. (The Senate is worse.) The prime directive of the House and Senate ethics committees must be to protect the integrity of Congress.
The House and Senate are capable of designing a non-political process that allows for the fair and timely review of allegations against members. The difficulty with implementing such a process is that Congress is a political body and members want to have their cake and eat it too.
Rep. Santos likely will get the boot, but accountability for misconduct that is causing ongoing harm to Congress as an institution is the exception, not the rule.
