George Santos, the Expulsion Power, and Fun with Textualism

The Constitution provides that “[e]ach House may determine the Rules of its Proceedings,  punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” This raises a question of interpretation. Does the power to expel turn upon a finding that the Member has engaged in disorderly behavior? In other words, should this sentence be read as if it said “each House may punish and, with the concurrence of two thirds, expel a Member for disorderly behavior”?

A straightforward response would be that if that was what Framers intended, that is what they would have written. Furthermore, if the Framers had meant that the power to expel was a special form of punishment (requiring a two thirds vote), such that the intended meaning was something like “each house may punish a member for disorderly behavior, including by expulsion if two thirds agree,” they would have, at a minimum, placed an additional “and” following “Proceedings,” thus indicating that the clause refers to two powers (one to determine rules and one to sanction violations of those rules), with the latter consisting of the power to punish (or to punish short of expulsion) and the power to expel. Instead, the clause as written suggests that there are three separate powers conveyed: (1) the power to determine rules; (2) the power to punish; and (3) the power to expel. A literal reading of the text, therefore, reveals that expulsion is not limited to disorderly behavior.

I must admit, however, that I have long assumed that the clause was inartfully drafted, and the Framers did not intend to permit expulsion for any reason, while limiting lesser punishments to cases involving disorderly behavior. As Professor Currie notes, “it is hard to imagine why the House should be licensed to employ only the extreme sanction of expulsion, and not lesser penalties, in other cases [not involving disorderly conduct].” David P. Currie, The Constitution in Congress: Democrats and Whigs 1829-1861, at 218 (2005).

One explanation for this might be the supermajority requirement for expulsion. Because two thirds must concur for expulsion, it might be argued there is less of a need to specify the grounds of offense. It can be assumed that there will rarely, if ever, be a consensus for expulsion unless the conduct clearly merits it. And historically there have in fact been very few expulsions: only five members have been expelled in the House and fifteen in the Senate, with the vast majority being members who supported the Confederacy during the Civil War.

There is a problem with that explanation, though. The draft which came out of the Committee of Detail, before Madison successfully moved to add a supermajority for expulsion, provided: “Each House may determine the rules of its proceedings; may punish its members for disorderly behaviour; and may expel a member.” 2 The Records of the Federal Convention of 1787, at 180 (Max Farrand ed. 1911). This language is, if anything, more clear than the final text that only the power to punish is limited to disorderly behavior, yet the power to expel in the committee’s draft could be exercised by a simple majority.

Perhaps the best explanation for why the Framers might have specified the offense for punishment, but not for expulsion, lies in the different purposes of these actions. Expulsion was fundamentally a self-protective measure, rather than a punishment, to enable the legislature to rid itself of members deemed unfit to serve. If a member engaged in conduct which did not rise to that level and which did not actually disrupt legislative proceedings (i.e., did not constitute disorderly behavior), it was deemed safe to leave any punishment to normal judicial process.

Ordinarily this makes little difference because “disorderly behavior” is now construed so broadly as to encompass virtually any misbehavior by a member, whether or not it disrupts legislative proceedings or even pertains to the member’s official functions at all. One limitation, however, persists. To my knowledge no member of the House or Senate has been punished for behavior which predated the member’s first election.

That brings us to the matter of George Santos, a first-term member who was indicted yesterday for a variety of financial crimes, including fraud, theft, violation of campaign finance laws and filing of false financial disclosures. Many of these offenses related to his status as a candidate for congressional office in 2020 and 2022, but all of them appear to precede his election to Congress (and certainly precede his being sworn in). It is therefore arguable (though by no means clear) that they do not constitute “disorderly conduct” for which Santos could constitutionally be punished by the House. (To be sure, this argument will be particularly difficult to make for those offenses which could have affected his election, such as filing of false campaign disclosures.) His lawyers can therefore argue that he cannot be expelled for these offenses either.

Because congressional expulsions are so rare, there are probably no precedents directly on point. One case that might be of interest is a 1913 election case involving a member who allegedly engaged in fraud and bribery during the primary and general elections. The Committee on Elections declined to pursue the matter as an election contest, but it suggested that the charges, if proven, could warrant expulsion. It explained that the power of expulsion is “a power of protection” that is “necessary to the safety of the State.” It could be exercised in a wide variety of circumstances, including for a member who is “wholly unfit through some physical disorder or mental derangement,” who commits a crime or is disloyal or engages in any misconduct “in any place and either before or after conviction in a court of law.” The committee concluded that “its extent seems to be unlimited” and is “a matter purely of discretion to be exercised by a two-thirds vote.” 2 Cannon’s Precedents of the House of Representatives §78, at 110 (1935).

While I am not entirely comfortable with the proposition that members can be expelled for any reason (could, for example, Senator Feinstein be expelled on the grounds that she is “wholly unfit” on grounds of mental or physical infirmities?), the textual argument for concluding that expulsion is not limited to disorderly conduct seems to be the stronger one here.

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