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  • Allon Advocacy

Yes, Virginia, There Is Still Drama In Congress

The months-long drama around Rep. Santos could end this week in his expulsion from Congress.

If you thought the fact that federal funding is secured until early 2024 meant a quiet end to Congress’ 2023 term, think again. This week, the House of Representatives may reach the climax of a months-long fight to oust one of its own members.

Indeed, yesterday several lawmakers asked that measures to expel Rep. George Santos (R-N.Y.) from the U.S. House be considered as privileged. Under House rules, those resolutions must now be considered within about 24 hours from now.

The drama could play out much longer than that, however.

Rep. Santos already has survived two other expulsion attempts, but GOP leaders appear ready to be done with this drama. As The Hill reported yesterday, “While Santos provides the slim House GOP majority with a key vote, the allegations against the GOP lawmaker have put a dark cloud around the party — especially vulnerable New York Republicans, who are facing pressure at home.”

How common is it for a lawmaker to be expelled from Congress, what will happen next, and what will happen if Rep. Santos is, indeed, thrown out of the U.S. House?

Let’s take a look.

How Common Is It For A Lawmaker To Be Expelled From Congress?

The answer to this question is that it is very, very rare. Like 0.0005 percent rare. As Bloomberg has noted, more than 11,000 people have served in the lower chamber of Congress. If expelled, Rep. Santos would be just the sixth House member to be thrown out of the U.S. House in history.

Expulsions from the U.S. Senate also are rare. According to congressional historians, since 1789 the upper chamber of Congress has expelled only 15 members. Of that number, 14 were ousted during the Civil War for supporting the Confederacy. Senators have considered expulsion measures several other times, but historians said those attempts were either dropped or a member resigned before their colleagues were forced to take a vote.

Of the five House members who have been expelled, three came in 1861 because of their role in supporting the Confederacy. Specifically, Rep. John Clark (Missouri), Rep. John Reid (Missouri), and Rep. Henry Burnett (Kentucky) were ousted for being “disloyal to the Union.”

According to the Congressional Research Service (CRS), in the century following the Civil War expulsions, neither the U.S. House nor the U.S. Senate expelled a lawmaker from their respective bodies.

In 1980, Rep. Michael “Ozzie” Myers (D-Penn.) was expelled from the U.S. house following a criminal conviction on charges relating to receiving a payment in return for promising to use official influence to sway legislation.

The last time a lawmaker was expelled from the U.S. House was in 2002 when Rep. Jim Traficant’s (D-Ohio) colleagues voted 420-1 to oust him. The congressman had been convicted on charges relating to official actions in Congress, including bribery, illegal gratuities, obstruction of justice, defrauding the government, filing false tax returns, and racketeering.

Today, Rep. Santos is accused of using funds donated to his campaign for his own benefit, including Botox treatments, trips to Atlantic City, and purchases on the adult website OnlyFans. Rep. Santos also allegedly used campaign funds to pay credit card bills, other debt, and to make $4,127 in purchases at Hermes. As ABC News noted, U.S. House investigators have said their “months-long probe of the New York congressman … revealed a ‘complex web of unlawful activity.’”

Rep. Santos’ case is a bit different than most of the expulsion cases outlined above. While he has been accused of illegal behavior, and the bipartisan House Committee on Ethics unanimously concluded that the congressman “placed his desire for private gain above his duty to uphold the Constitution, federal law, and ethical principles,” Rep. Santos has not actually been convicted of any wrongdoing. In fact, he has pleaded not guilty to 23 federal charges. He also has pledged that he will not run for reelection in 2024.

As Roll Call concluded, if the motion to remove Rep. Santos is successful, he would be the only House member “without ties to the Confederacy or a conviction in court” to be removed from the body in U.S. history. (Though, to be clear, as Roll Call also explained, in May Rep. Santos “resolved a criminal case in Brazil involving a pair of shoes and a stolen checkbook in which he agreed to pay just under $5,000, a settlement that led prosecutors to drop the case.”)

What Is The Process For Removing A Federal Lawmaker?

“The Constitution does not say that you can expel a member only after he's been indicted,” former U.S. House historian Ray Smock told ABC News. “The House is the judge of its own members, and the Constitution is clear on that.”

Under Article I, section 5 of the U.S. Constitution, each chamber of Congress “may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.”

As Smock noted, that language means members of the U.S. House and Senate have a lot of leeway in deciding how and why members are expelled. As the CRS has explained, “The history of the Expulsion Clause suggests that the expulsion power is broad and confers to each house of Congress significant discretion as to the proper grounds for which a member may be expelled. Accordingly, courts generally have declined to adjudicate the standards by which expulsions might be considered in the House or Senate.”

Currently, “the only explicit standards for expulsion” are that supermajority voting requirement that is outlined in the Constitution, the CRS concluded.

Yesterday, Rep. Robert Garcia (D-Calif.) called a vote on a resolution to expel Rep. Santos. As The Hill reported, Rep. Garcia called his resolution to the floor as a privileged measure, “a procedural gambit that forces the chamber to take action … within two legislative days.”

Can the U.S. House reach the two-thirds threshold? According to ABC News, “A growing number of House Republicans who did not vote to remove Santos earlier this month said they want him expelled.” Rep. Dusty Johnson, a Republican from South Dakota, told Politico, “I think Santos is a crook … It’s an easy vote to expel for me.”

Rep. Santos even has said he expects the vote to expel him to be successful.

What Happens If Lawmakers Expel Rep. Santos?

If the House does kick out Rep. Santos, a special election to fill Rep. Santos’ seat will be triggered in New York. As AXIOS has explained:

  • New York Gov. Kathy Hochul (D) is required by state law to proclaim a special election within 10 days of any House seat becoming vacant.

  • The special election must then to be held between 70 and 80 days after the governor makes that request.

  • Special election candidates will be selected by local party leaders.

Former Rep. Thomas Suozzi (D-N.Y.) already has said that he would run for his old seat. He represented the 3rd congressional district from 2017 to 2023. Former Rep. Souzzi bested Rep. Santos by nearly 13 points in 2020 before retiring from Congress to unsuccessfully run for governor in 2022.

Other strong Democratic candidates also are circling, including State Sen. Anne Kaplan who, as AXIOS noted, turned her New York Senate seat from Republican to Democrat in 2018.

Already, seven Democrats and nine Republicans have announced bids for the 3rd district seat in 2024, according to Ballotpedia, including former Rep. Souzzi and State Sen. Kaplan.

Any special election in the 3rd district will almost certainly send a Democrat to the U.S. House, further narrowing Republicans’ already very slim majority in that chamber. More than anything, the likely outcome of a special election is what is creating hesitancy among some House Republicans to moving forward with a vote this week. As a result, we could see Republicans shy away from voting to expel the New York Republican unless (until?) he is convicted of the crimes of which he is accused.

Holiday drama? There’s always plenty in Congress.

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