Dems Are Calling For Santos To Not Be Seated In The Next Congress. Can That Happen?

Baldwin, N.Y.: Congressman-elect George Devolder Santos joined the newly elected GOP members of the Senate and Congress during a press conference on November. 9, 2022 in Baldwin, New York. (Photo by Alejandra Villa ... Baldwin, N.Y.: Congressman-elect George Devolder Santos joined the newly elected GOP members of the Senate and Congress during a press conference on November. 9, 2022 in Baldwin, New York. (Photo by Alejandra Villa Loarca/Newsday RM via Getty Images) MORE LESS
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Since the New York Times came out with their explosive report claiming Rep.-elect George Santos (R-NY) fabricated the majority of his background and credentials, some lawmakers have been calling for action to be taken to stop the congressman-elect from taking office in the new year.

Following the report, Santos admitted to “embellishing” parts of his resume — including acknowledging he never “worked directly” for Goldman Sachs or Citigroup and saying he never claimed to be Jewish, just “Jew-ish.”

But despite the clear admission of his lies, Congress’ ability to stop him from taking office is limited.

Typically when a politician gets caught red handed committing some malfeasance — like in the case of Santos — the pressure from the public, their constituents, and the media is enough to push them to resign in disgrace. But in  the MAGA era, shame doesn’t work quite the way it used to.

Santos has been adamant he will be sworn in to the new Congress on Jan. 3. “I will be sworn in,” Santos said in a Monday interview on New York’s WABC radio. “I will take office to be able to be an effective member of the legislature.”

Santos is simply taking cues from the successes of others in the Trumpian era. And as political observers have witnessed over the last six years, shamelessness is often the point. 

“If someone has proven themselves to be shameless, shaming them out of office might not be the best option,” Brian Kalt, a lawyer and Michigan State University professor focused on constitutional law, told TPM. 

Nonetheless, Democrats like Rep. Eric Swalwell (D-CA) are still calling for Santos to be banned from taking the oath of office in January.

But, as Kalt explained, it might not be that simple. Elected representatives can only be denied office if they don’t meet the qualifications set forth in the Constitution — including being at least 25-years-old, being a citizen and being a resident of the state they’re running in. 

And per the Supreme Court’s 1969 Powell v. McCormack ruling, lawmakers can’t ban him or stop him from taking the oath based simply on the fact that he is a liar.

That’s with good reason, Kalt said. “Especially in these hyper-partisan times, you can imagine the majority saying, ‘Well, here’s a bunch of people from the other party that we think should be banned. Maybe they haven’t been convicted of anything, but we’re the judge here and we’re just going to have a separate vote to see who we think is good enough to be in office.’ Obviously, they would be biased and the majority would entrench itself in ways that would flout the will of the electorate and it would create a slippery slope,” Kalt said. 

But even though the Constitution is clear on the fact that Santos can’t be banned from Congress, there are other options at the disposal of lawmakers who are calling for action.

Lawmakers can expel Santos.

Lawmakers can technically expel anyone in Congress for any reason they want as long as they have a two thirds majority, according to Kalt.

The two third majority rule is in the Constitution to make sure that a decision to expel a representative isn’t done on a partisan basis.

For this to work, “you need to get members of both parties wanting to get rid of Santos,” Kalt said. “But that seems unlikely as they tend to be sparing in using their power to expel.”

The reluctance to expel members often comes from fear of reprehension. “Everyone has political opponents who could portray them as liars,” Kalt said. “So they might think ‘This guy’s a big liar but if we expel him for that none of us are safe.’”

Only five people have been expelled from Congress in the past 233 years. The last person to be expelled was Democrat James Traficant, who was voted out in 2002 after getting convicted of bribery, conspiracy to defraud the U.S., corruption, obstruction of justice, tax evasion, and racketeering. Before him three congressmen were expelled in 1861 for supporting the Confederate rebellion and one in 1980 after being convicted of bribery in the Abscam scandal.

Lawmakers can reprimand Santos and limit his power in office.

“There’s a more general provision that says the House can punish disorderly conduct by its members,” Kalt said. “A majority of the house, or in some cases, basically just the speaker, can punish someone — short of denying them their seat — and can take away some of their power.”

In other words, if the majority of the House thinks that Santos is a liar or has engaged in conduct unbecoming of the house, they can vote to censure him, they can strip him of his committee assignments and they can even reduce the resources he has for his office. 

This would look similar to what happened to Rep. Marjorie Taylor Greene (R-GA) and Rep. Paul Gosar (R-AZ) in 2021.

Greene and Gosar were reprimanded last year following incendiary social media posts. Gosar was officially censured and removed from his committee assignments after posting a video on social media depicting himself as an anime character attacking Rep. Alexandria Ocasio-Cortez (D-NY) and President Joe Biden. And Greene, even though not officially censured, was removed from her committee assignments after musing about the assassination of Speaker Nancy Pelosi, and pushing dangerous, baseless conspiracy theories.

“If he is stripped of his powers, if he is ridiculed and hounded by the press, if it’s clear that he’s not going to be able to do anything in office, then he might not see the point in continuing,” Kalt said.

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