Why Democrats decided against expelling George Santos

On the one hand, the House’s vote Wednesday against expelling Rep. George Santos, R-N.Y., from its ranks was almost a foregone conclusion. The final vote — 179 in favor of expulsion, 213 against and 19 voting present — was well short of a majority, let alone the two-thirds the privileged resolution needed to pass.

But the vote was unexpectedly bipartisan. Yes, it made sense that 24 Republicans voted in favor of expulsion — it was a group of New York Republicans who had introduced the resolution to boot Santos in the first place. More surprising, however, were the 31 Democrats who joined with the GOP majority to keep Santos in place, at least for now.

More surprising, however, were the 31 Democrats who joined with the GOP majority to keep Santos in place, at least for now.

The list of Democrats who voted against expulsion spans moderates like Jared Golden of Maine and progressives like Rashida Tlaib of Michigan. (Just before the expulsion vote, Tlaib avoided a censure resolution, in a vote in which Santos hadn’t shown her similar grace.) Of those, Jamie Raskin of Maryland provided the most comprehensive explanation for his vote.

“I’m a Constitution guy,” Raskin said in his statement, underselling his role as a constitutional law professor at American University. The senior Democrat on the House Oversight Committee noted that expulsion is exceedingly rare and that “Santos has not been criminally convicted yet of any of the offenses he has been indicted for that were cited in the Resolution nor has he been found guilty of ethics offenses in the House internal process.” He argued that it “would be a terrible precedent to set, expelling people who have not been convicted of a crime and without internal due process.”

It’s true that Santos has pleaded not guilty to the 23 criminal charges against him. And yes, the House Ethics Committee has yet to release its findings, though it said it would announce its next steps in the probe by Nov. 17. But in this specific instance, Santos’ former campaign treasurer, in pleading guilty to several of the crimes with which Santos is charged, has already admitted in court that she’d conspired with him in committing those crimes. Many of the ethical lapses the House is internally investigating have also already been extremely well-reported.

But where Raskin really lost me was when he started arguing that a vote to expel Santos on Wednesday would have been a slippery slope:  

“I can think of four or five Democratic Members the Republicans would like to expel without any criminal conviction or adverse ethics findings tomorrow simply because they hate their politics. Indeed, the same New York Republicans who want to expel Santos now because he is a complete political albatross for them acted to vigorously defend him in the spring because they wanted his vote for their party on the floor. If Members are not going to be expelled for purely political reasons, we need to stick to due process and the rule of law.”

I appreciate Raskin’s skepticism toward the about-face by Santos’ fellow New York Republicans. But many of the resolutions’ co-sponsors have been actively calling on Santos to resign, and Republican leadership reportedly had to work to persuade them to support punting a previous Democratic-sponsored resolution to the Ethics Committee. Rep. Nick LaLota, R-N.Y., one of the co-sponsors, has already said he plans to offer the resolution again after the Ethics Committee releases its report.

The bigger threat, as I see it, is not that members are kicked out too easily for partisan reasons.

More broadly, Raskin is probably right about how many Democratic members Republicans would want to expel. But the Constitution doesn’t lay out the specific behavior that triggers expulsion or guidelines for the process. It says in Article I, Section 5 only that Congress can “punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” In other words, as the Congressional Research Service put it, “the only explicit standards for expulsion are the requirement for approval of two-thirds majority of the body imposing the punishment and the requirement that the individual subject to the expulsion has been formally seated as a Member of that body.”

The standard that a conviction of a criminal offense (or, as in the three pre-Civil War cases, disloyalty to the Union) is required for expulsion isn’t a rule of the House, let alone a constitutional requirement. Raskin’s fear that solely political expulsions could follow assumes several things, including that there is no link between good politics and good governance. Yes, it is politically advantageous for New York Republicans in swing districts to at least make a show of distancing themselves from Santos. But his removal would also serve as a new norm against allowing charlatans to remain in their seats.

If Raskin fears that partisan expulsions would follow had the vote against Santos succeeded, it presumes that there are supermajorities that would allow such an action to occur. But even if all 31 Democrats who voted against expulsion flipped their votes, it still wouldn’t have come close to the two-thirds required. Since the House reached its current size in 1913, two-thirds control by one party has been extremely rare. And one of the consequences of this current era of hyperpartisanship is that the sizes of majorities in the House have been steadily shrinking.

This may all turn out to be a moot point should the Ethics Committee truly recommend expulsion in the next few weeks. But even if that’s the case, there’s still a steep uphill climb for other members of Santos’ party to kick out the scammer in their midst. The bigger threat, as I see it, is not that members are kicked out too easily for partisan reasons. It’s that members who are clearly unfit to serve are permitted to remain because of the letters next to their names.