Lawmakers Have Other Options

Representative-elect George Santos is facing calls to resign his seat in the House of Representatives before the 118th Congress convenes on January 3. Santos defeated Democrat Robert Zimmerman in a Democratic-leaning district in this year’s midterm elections by more than 8 points. And starting next week, Santos will represent New York’s 3rd congressional district in the House if he does not resign before the new Congress official begins.

Revelations that Santos lied to voters about his background have prompted some Democrats - and a few Republicans - to say that the representative-elect is unfit to serve in the House. Santos' critics want him to step aside voluntarily so voters in New York’s 3rd district can pick someone else to represent them in a special election. And some Democrats have suggested that the House expel Santos if he refuses to resign.

Yet however distasteful Santos’ fabrications may be, lawmakers risk setting a dangerous precedent if they expel the representative-elect for statements he made as a private citizen and before a criminal investigation has determined that he violated any laws in doing so. This is because the Constitution empowers the people - not lawmakers - to pick their representatives. And it details the qualifications those representatives must meet to serve in the institution. Santos meets those qualifications.

The Constitution also gives the House power to discipline its members. But it doesn’t empower lawmakers to discipline individual private citizens before they are members.

Lawmakers can take other disciplinary actions against Santos that do not raise the same issues as expulsion. For example, the House may direct its Committee on Ethics to investigate Santos and to recommend censuring or reprimanding him based on its findings. The Ethics Committee can also fine Santos, issue a letter of reproval demanding that he apologize, or take other administrative actions.

But lawmakers may need to change the House rules - or clarify the institution’s precedents - before taking these actions. And the Constitution’s Rules and Expulsion clause (Article I, section 5, clause 2) empowers the House to change its rules as long as lawmakers do not violate other constitutional provisions in doing so.

Criminal Investigations

Separate from whatever disciplinary action the House takes (or doesn’t take) vis-a-vis Santos, the representative-elect could still face criminal charges in state and/or federal court if his campaign statements violated any laws. That is why federal and state authorities are presently investigating Santos’ claims to determine if he violated any laws during the 2022 campaign.

The Constitution’s provisions protecting members of Congress from arrest and shielding their official statements and actions (Article I, section 6, clause 1) apply to lawmakers and not aspiring lawmakers. And they only apply to lawmakers “during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” Santos lied about his life story while campaigning for a seat in the House, not as an incumbent. Consequently, he is ineligible for the protection that the Constitution gives to lawmakers.

Potential House Investigations

The House Ethics Committee may - in theory - investigate Santos apart from any criminal investigation. And lawmakers can take several different disciplinary actions against Santos if they conclude that the representative-elect violated federal and/or state law, the Rules of the House of Representatives, or the guidelines outlined in the institution’s Code of Official Conduct. But lawmakers may have to change the House rules or clarify its precedents before directing the panel to do so. This is because Santos was not a member when he made his false statements. And the House rules appear only to empower the committee to investigate members, delegates, and the resident commissioner (as well as House employees).

The Ethics Committee

The Committee on Ethics has jurisdiction over alleged violations of the House’s Code of Official Conduct under clause House Rule X(g). And House Rule XI 3(a)(1) authorizes the Ethics Committee to recommend to the full House that lawmakers take one of several disciplinary actions against “Members, Delegates, the Resident Commissioner, officers, and employees of the House” that the panel deems necessary to enforce the House’s Code of Official Conduct.

House Rule XI 3(a)(2) explicitly stipulates that the Ethics Committee may investigate “an alleged violation by “a Member, delegate, Resident Commissioner, officer, or employee of the House of the Code of Official Conduct or of a law, rule, regulation, or other standard of conduct applicable to the conduct of such Member, Delegate, Resident Commissioner, officer, or employee in the performance of the duties or the discharge of the responsibilities of such individual.”

The House’s Code of Official Conduct stipulates explicitly that a “Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House.” And it requires that a “Member, Delegate, Resident Commissioner, officer, or employee of the House shall adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.”

And the Code of Conduct details what should happen if Santos is convicted of a crime while serving as a House member.

“A Member, Delegate, or Resident Commissioner who has been convicted by a court of record for the commission of a crime for which a sentence of two or more years’ imprisonment may be imposed should refrain from participation in the business of each committee of which such individual is a member, and a Member should refrain from voting on any question at a meeting of the House or of the Committee of the Whole House on the state of the Union, unless or until judicial or executive proceedings result in reinstatement of the presumption of the innocence of such Member or until the Member is reelected to the House after the date of such conviction.”

“A Member, Delegate, or Resident Commissioner who has been indicted for or otherwise formally charged with criminal conduct in any Federal, State, or local court punishable as a felony for which a sentence of two or more years’ imprisonment may be imposed should resign from any standing, select, joint or ad hoc committee, and any subcommittee thereof, on which such Member, Delegate, or Resident Commissioner serves, and should step aside from any party caucus or conference leadership position such Member, Delegate, or Resident Commissioner holds, unless or until judicial or executive proceedings result in acquittal or the charges are dismissed or reduced to less than a felony as described in this paragraph.”

These guidelines apply to lawmakers, not aspiring lawmakers. For example, suppose the House rules, its precedents, and the Code of Official Conduct do not authorize lawmakers to investigate Santos or take disciplinary action against him for statements he made as a private citizen before being elected as a House member. In that case, lawmakers need to change their rules to empower the Ethics Committee to proceed.

The Takeaway

The rules matter. They empower lawmakers to take action in some areas. And they limit lawmakers' ability to act in other areas. While lawmakers cannot ignore the Constitution without violating it, they can use the Constitution to make rules to govern their proceedings. And they can change those rules – following the Constitution – if needed to take disciplinary action against Santos.