Expulsion from Congress is extremely rare. Nevertheless, NY Congressman George Santos was expelled on December 1, 2023. So how did that happen?
Today on Civics 101 we are guided by Carlos Algara, who lays out the history of expulsion in both chambers, the process, the Ethics Committee, censure, and how Congress fills an empty seat after somebody is expelled.
Transcript
Hannah McCarthy: Nick, what are you doing?
Nick Capodice: Uh. Square breathing.
Hannah McCarthy: Square breathing.
Nick Capodice: Square breathing. It's a it's a technique I heard the Navy Seals do sort of calm down a little. Keep their head straight. You breathe in four seconds, hold four, out for, hold four, etc., okay?
Hannah McCarthy: Like. Like a square. [00:00:30]
Nick Capodice: Like a square? Yeah, like a square.
Hannah McCarthy: Now, why are we talking about square breathing?
Nick Capodice: Uh, so usually, Hannah, when I start an episode, I find some, like, relative news clips, and I put some bompin music underneath it, and then we say, I'm Nick Capodice, I'm Hannah McCarthy. But the sheer firehose amount of soundbites for this one...
Archival: , this Burberry.Scarf, Botox treatment..At Hermes and Ferragamo.
And what's in those soundbites? It's pretty bonkers.
Archival: Organized a [00:01:00] fundraiser for his dying service dog back in 2016, only to pocket the money himself. I actually went to school on, uh, on a volleyball scholarship.
Nick Capodice: Like, kind of all over the place. Like maybe it's performance art level. Bonkers.
Archival: When asked if the baby was his, Jorge Santos responded, not yet. The next time he tries to accost me with the child in my.Hand, I want him out of here.
Nick Capodice: Honky tonk bazonker zonk, Hannah
Archival: what could we do to get you to go away? Stop inviting me [00:01:30] to your gigs.
Nick Capodice: Okay. We're cool. We're going to keep it about systems and procedures because that's what we do on this show. You are listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are talking about expulsion from Congress. We're also going to talk about the Ethics committee, censure and how a congressional seat is filled when somebody is expelled.
Hannah McCarthy: And, Nick, I imagine the reason we are doing this episode right now [00:02:00] is because we have just had an expulsion. And to fill anyone in who may have missed it. On December 1st, 2023, the House voted 311 to 114 to expel Congressman Jorge Santos for, um. Wait, did the House say which of the charges against him merited expulsion?
Nick Capodice: Yeah, it was kind of like an amalgamation of all of the charges. House resolution 878, which everybody out there should read. By the way, [00:02:30] just look up H.R. 878 on Congress.gov. It lists several pages of charges, including campaign finance violations, identity theft, sexual harassment, and Santos enriching himself through a fraudulent contribution scheme. I might have missed a few.
Hannah McCarthy: Okay. Uh, so to start, like, how often does an expulsion happen?
Carlos Algara: Um, long story short, not that often. And there's a couple reasons why.
Nick Capodice: This is Carlos Algara, professor [00:03:00] of political science at Claremont Graduate University and formerly in the employ of the US Senate.
Hannah McCarthy: Oh, wow. So he worked on Capitol Hill.
Nick Capodice: He did. He worked in the office of Senator Jeff Merkley. He has been inside the machines we talk about every day from afar. Um, but yes, Carlos is right. Expulsion from Congress is as rare as to use a favorite expression of my father hen's teeth and horse's toes.
Carlos Algara: Most cases of expulsion, if you look at the historical record, occurred during the Civil War, [00:03:30] right. In both chambers. Um, so we've had members of Congress expelled during the Civil War under a clause called disloyalty to the Union. And that's where the bulk of the cases come from.
Hannah McCarthy: How many House representatives were expelled during the Civil War?
Nick Capodice: Three.
Hannah McCarthy: Wow. And after that.
Carlos Algara: There have been two expulsions during the postwar period. The first is James Traficant. Um, in 2002, he was expelled due to, um, I believe it was some sort of, uh, bribery scandal. [00:04:00] Uh, and then there was another congressman, uh, Michael Myers from Pennsylvania, who was also expelled. He was part of the Abscam scandal. And so those are the two most recent members, um, since the Civil War, actually the House of Representatives.
Hannah McCarthy: Wow. So George Santos is the sixth in US history?
Nick Capodice: Yep. Lucky number six.
Hannah McCarthy: How about the Senate? Is it more or less common?
Carlos Algara: The Senate's a little bit different, right? The Senate, whether it's because of norms or whether it's because of sort of the nature of the upper chamber, [00:04:30] we've noticed that senators generally resign, right? You know, I don't know if it's because, um, as a senator, you're in the spotlight more and it's harder to commit crimes while you're in office. Senate races are statewide. They're much more high profile. Um, so we have strong selection effects here, right. Um, but, you know, John Ensign, so this was a Nevada Republican senator. He ends up using official funds. It was payments to to a mistress. Um, that was not disclosed on campaign finance. Right. [00:05:00] Obviously very illegal. Something you shouldn't do. When the expulsion proceedings were beginning in 2011, he resigns, right? He puts out a statement. He says he doesn't want to put his family through this and he leaves the chamber. So on the Senate side, we see a lot less drama.
Nick Capodice: There was one expulsion from the Senate back in 1797. William Blount, who was charged with treason for inciting the Creek and Cherokee nations to invade Spain's Florida territory, a topic for another day, but the next ones [00:05:30] after that. We got a wash of 14 senators being expelled during the Civil War, but literally none after that whatsoever. Like Carlos said, they usually resigned or they were exonerated for their crimes. And that's why in this episode I'm pretty much focusing on house expulsion.
Hannah McCarthy: All right. So it's a big deal. I get how rare this is, but I want to know about the process. Our expulsions in the Constitution.
Nick Capodice: They [00:06:00] are indeed, article one, section five, clause two. "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds, expel a member."
Hannah McCarthy: Oh, it takes a two thirds majority.
Nick Capodice: Yeah it does, but Congress can in certain circumstances choose to not allow an elected representative or senator to be a member of Congress before the Terme even starts.
Carlos Algara: The Constitution gives both chambers of Congress the authority and the power [00:06:30] to decide its own members. Should. So even before getting to expulsion. Um, Congress can decide whether or not to seat a member elect. That requires a simple majority vote. So, you know, there have been course, there have been some instances in history, um, where members elect have actually committed crimes and they have not been seated. Right. And so that takes that's similar to expulsion. That takes a majority.
Hannah McCarthy: Just a simple majority. And Congress can say, yeah, you were elected, but we're not letting you in.
Nick Capodice: Yeah. And it may seem [00:07:00] that this power could be ruthlessly abused by the majority party, just, you know, refusing to seat anyone from the other party. But it is exceptionally rare. And the Supreme Court ruled in pal v McCormick in 1969 that Congress must seat someone if they were elected, unless they violate the necessary qualifications of being a member of Congress in Article one. So this has only happened a handful of times.
Hannah McCarthy: So I'm in Congress. I've done some [00:07:30] bad things. How does this ball get rolling?
Nick Capodice: Well, I will tell you how. And it involves one of the least desirable committee appointments you can get right after this break.
Hannah McCarthy: But before the break, you know what Nick and I did after making hundreds of episodes about the government?
Nick Capodice: What do we do?
Hannah McCarthy: We wrote a dang book about it. It's called A User's Guide to Democracy How America Works. It's illustrated by the brilliant and hilarious Tom Toro, and it crams as much approachable [00:08:00] civics content as possible into one handy vessel. I love it, you're gonna love it. Check it out.
Hannah McCarthy: We're back. We're talking expulsion from Congress. And Nick, you were about to get to the process.
Nick Capodice: Absolutely. Here's Carlos Algara.
Carlos Algara: Generally, how it goes is a member is confronted with an ethics complaint and that gets referred [00:08:30] just like any resolution, just like any piece of legislation that gets referred to a committee. Right. Um, and so that gets referred to the ethics committee, who then does an investigation.
Nick Capodice: The ethics committee. Now, this committee is different from all the others. Hannah, unlike the rest of the committees, which have party members proportional to their majority in the House, there are equal numbers of Democrats and Republicans on the Ethics Committee.
Hannah McCarthy: So it is a truly bipartisan committee.
Nick Capodice: As bipartisan [00:09:00] as it can get in Washington, DC, ten members, five Democrats, five Republicans. And their job is to conduct investigations into any alleged violations by members of the House or their staff.
Hannah McCarthy: Now, have we always had a House Committee on ethics?
Nick Capodice: Uh, no. There were other committees that did similar work, but the modern iteration is relatively new.
Carlos Algara: What happens is in 2008, uh, you know, Congress creates the Office of Congressional Ethics, right? So this is an outgrowth [00:09:30] of the scandals that we saw in 2005 and 2006. Right. The Tom Delay scandals, um, the Jack Abramoff scandal, which takes down a couple members of Congress, the Mark Foley scandal. Right. So those Congresses were very much scandal ridden. Um, and so Congress, under a Democratic majority, uh, makes this office right, which is nonpartisan, which is independent, and which reviews the allegations of misconduct. And so these are nonpartisan committee staff members that are actually doing the [00:10:00] work of investigating these allegations. You know, and I think to their credit, um, the ethics committee on both sides, they yield to these nonpartisan staffs. So if you look at the Ethics committee, uh, the final ethics report around Congressman Santos, clearly there was no attempt by the majority, um, to shield or to water down any of the findings.
Hannah McCarthy: I remember in your episode on committees, you intimated that being on the ethics committee is how do I put this? Not [00:10:30] the most coveted position.
Nick Capodice: I think that's a fine way to put it. Hannah.
Carlos Algara: Uh, you know, I think that's I think that's the correct perception on the hill. Right? It's a very thankless task. You're not creating policy. You're investigating your colleagues when they are accused of doing something wrong. So, you know, this is something that that is not a desirable committee assignment, like, say, the Appropriations Committee or that Ways and Means Committee, where you're actually able to influence policy. And, you know, if you're in the majority side, you're able to ram through legislation [00:11:00] over the minority. The ethics committee is very different. And you're also doing a lot of delegating to staff.
Nick Capodice: Now, if anyone out there who serves on the ethics committee thinks I'm being unfair and you're happier there than you would be on the Appropriations Committee, please email me and I will make a correction.
Hannah McCarthy: All right, so the committee investigates, the staff gathers evidence. What happens when the investigation is done?
Nick Capodice: Well, in this most recent instance, Hannah, things went a little differently than normal.
Carlos Algara: Congressman [00:11:30] Santos, there were efforts to expel him from Congress prior to the grant vote. Right. And his argument was that they needed to wait for the ethics committee to come, you know, to complete their investigation. And generally speaking, what happens is the Ethics committee will investigate and we'll put out a report. And generally speaking, they make a recommendation. Um, sometimes they'll recommend to do nothing. Sometimes they recommend expulsion, which is very rare. Uh, most of the time, [00:12:00] you know, they, they sort of put out a report that says, um, you know, we found wrongdoing. Um, but, you know, there's that doesn't rise to the level of an expulsion or even a censure. And so in this case, it was really interesting because the committee essentially found that these allegations of misuse of campaign funds was credible against Congressman Santos, but didn't make a recommendation. Right. There was no recommendation to expel.
Hannah McCarthy: Wait. So they believed these allegations against Jorge Santos were credible, an ethics violation. [00:12:30] But they didn't do the last step where they say, therefore he should be expelled.
Nick Capodice: Exactly.
Hannah McCarthy: So how did he get expelled?
Carlos Algara: What happens was in in a point of personal privilege, some Republican partizans from New York forced the issue onto the floor, um, through a procedural maneuver. And they were able to, uh, you know, to, to get the votes, ultimately to expel Congressman Santos. There are some procedural tricks that are able to be used in, in cases like this. [00:13:00] Um, generally the way that it works is, uh, you know, there's something called a point of personal privilege where a member can, can try to sort of force a vote, uh, you know, just very simply force a vote on on a resolution on the floor.
Nick Capodice: A point of personal privilege. It's a way a member of the House can get certain things to the floor for a vote, against the wishes of the party in the majority. And that's really hard to do. Uh, as we have mentioned in other episodes, if the speaker of the House doesn't [00:13:30] want a bill to pass, they can just let it die in committee, never bring it to the floor. But since this wasn't a bill, this wasn't a piece of legislation that changes the tax on wheat or whatever. The Republican chairman of the Ethics Committee, Congressman Michael Guest, was able to get it to the floor for a vote. And there you have it. They did have the votes to expel Congressman Santos, even though the speaker of the House and almost every other member of leadership voted against his expulsion on this vote. [00:14:00]
Archival: The yeas are 311, the nays are 114, with two recorded as present, two thirds voting in the affirmative. The resolution is adopted and a motion to reconsider is laid upon the table. Under clause five D of rule 20, the chair announces to the House that in light of the expulsion of the gentleman from New York, Mr. Santos, the whole number of the house is now 434.
Hannah McCarthy: Real quick. Earlier, [00:14:30] Carlos mentioned potential censure of Jorge Santos. What is the difference between censure and expulsion?
Nick Capodice: Censure is like a letter from the teacher in your backpack.
Carlos Algara: Um, center is pretty much, uh, you could think about it as I don't want people in the in in the pundit world, I think call it a slap on the wrist. You know, it's essentially a condemnation of the, uh, members actions. You know, that takes a simple majority vote. You know, it's essentially just letting the member know that as a chamber, [00:15:00] we do not agree with what you did. Right. So, Congressman Bowman, for example, um, just got censured by the House breaking news.
Archival: The House of Representatives just voted to censure New York Democrat Jamaal Bowman. The vote stemming from this incident. You see here where Bowman pulls a fire alarm while the chamber was in session discussing a bill to avoid a shutdown deadline.
Carlos Algara: Congressman Adam Schiff, um, got censured for, uh, I believe his role, um, [00:15:30] chairing the Intelligence Committee in the last Congress, right.
Archival: Laid on the table, house will be in order...And you probably heard it there in the background...You heard the Democratic lawmakers chanting the word shame.
Carlos Algara: Uh, so these censures are much more common. Um, they've gotten very much partisan. Right. So generally, they used to be these motions where, you know, you would do something and, um, you know, maybe a member's conduct doesn't rise to the level of, of expulsion, [00:16:00] but you want to signal your disapproval. Um, you would you would censure that member. So, you know, it's definitely a mechanism, um, where the Congress can let itself be known. And unlike an expulsion, there's really no way behind it, if that makes sense.
Nick Capodice: And it's not just members of Congress. 12 sitting presidents have been censured. Uh, and to my knowledge, those censures really had no tangible effect.
Hannah McCarthy: All right, so Santos has been expelled. [00:16:30] There's now an empty seat in the house. How and when will that seat get filled?
Carlos Algara: It looks like Governor Hochul from New York has called a special election, uh, which is going to be early, um, in the New year. And the part unlike, uh, the general way that it works in New York, where they have Partizan primaries, um, here the party leaders are going to choose the candidates. And so the Democrats have, um, they're going to nominate, um, Congressman Tom Suozzi, who was a congressman [00:17:00] before Congressman Santos. He retired in 2022, which allowed Congressman Santos to flip his seat. He actually defeated Jorge Santos in 2020, and he ran for governor in 2022 and lost the primary. So, um, they are nominating him, and I believe the Republicans in the district have decided to nominate a first time candidate.
Nick Capodice: Now, when there are vacancies in the Senate, the governor of the state can usually just appoint a new sitting senator until the next general election. But if we're talking the House, we're talking the People's Chamber. [00:17:30] Those people have got a vote. And that vote is scheduled for February 13th, 2024.
Hannah McCarthy: And George Santos, he he can't run in that election, can he?
Nick Capodice: Oh, he most certainly can. Hannah. Uh, interestingly, the most recent member of Congress that was expelled, James Traficant, he ran for the same seat while he was in a federal penitentiary. I mean, he did not win. No, but he got 15% [00:18:00] of the vote.
Carlos Algara: So, yeah, I mean, you know, there's nothing precluding them from running. Uh, obviously they're not going to be successful. Um, but, you know, in the in the event that they are there are other mechanisms in place to keep them from entering Congress. So Congressman Santos can run in 2024 and he might even. Well, obviously, it's not going to win. But, um, you know, if he were to win, um, there are mechanisms to keep him out of Congress.
Hannah McCarthy: Mechanisms like the one Carlos mentioned in the beginning, like Congress refusing to seat someone.
Nick Capodice: Exactly. [00:18:30] But I will add, when Santos was asked if he'd run again, he said, quote, I'm not ruling it out, end quote.
Hannah McCarthy: What is it?
Nick Capodice: I just thought of, like, the George Santos version of square breathing. You know, like in two years. Wait, two years out, ten back in again. Who knows? It's very calming. Hannah. You should try it.
Hannah McCarthy: Yeah, okay.
Nick Capodice: Well, that is expulsion [00:19:00] from Congress. This episode was written and produced by George Santos. I can't make those jokes. Can I make those jokes? Kind of low hanging fruit? Uh, but yeah, this episode was made by me. Nick Capodice with You Hannah McCarthy. Our senior producer is Christina Phillips. Our executive producer is Rebecca Lavoie. Music in this episode by Scanglobe, Dyalla, Lobo Loco, Lofive, The New Fools, Fabian Tell, Dusty Decks, Pandaraps, Nekozilla, Bio Unit, ProletR who just released a great album but it's not in the creative commons so we can't use it, and the one who is never expelled from my episodes Chris Zabriskie. Civics [00:19:30] 101 is a production of NHPR, New Hampshire Public Radio.
Speaker14: Expelliarmus.