Rep.-elect George Santos (R-N.Y.) seems to have taken a page out of the 1999 movie, “The Talented Mr. Ripley,” starring Matt Damon. Unlike Damon, he is not likely to win a best actor nomination for his portrayal of a totally fabricated alter-persona.
The closest he may come is an entry in “Ripley’s Believe It or Not” for pulling-off the biggest voter scam in House history. It is more likely he will face scorn and derision from colleagues on both sides of the aisle.
The only factor that may save him from an immediate referral to the House Ethics Committee (or elsewhere), is the Republicans’ razor-thin majority margin of 222 members versus 212 Democrats. The GOP can ill-afford at the outset of the 118th Congress to lose anyone. That holds especially true for Speaker-nominate Kevin McCarthy (R-Calif.) whom Santos has pledged to support.
My immediate reaction was to wonder why the House could not just refuse to seat Santos on opening day, when members are sworn in, for perpetrating an election fraud. After all, such action need not be pursuant to an election contest filed by his losing opponent. According to the precedents, the House itself may initiate an election investigation of a member-elect if another member challenges the seating, in which case the matter is referred to the House Administration Committee or a select committee. After all, the Constitution explicitly provides that, “Each House shall be the judge of the elections, returns and qualifications of its own Members” (Article I, sec. 5), and the determination by the House on the right to a seat is final, being considered a non-justiciable political question (Roudebush v. Hartke, 405 U.S. 15, 1972).
What I was overlooking, is that the Supreme Court had already held against such a challenge: the case of Powell v. McCormack (395 U.S 486, 1969). In 1967, the House voted to exclude Rep. Adam Clayton Powell, Jr. (D-N.Y.) from taking his seat at the outset of the 90th Congress based on charges he had misappropriated public funds and abused the New York court system.
In a challenge to that vote to exclude him from membership, Powell brought suit against the Speaker, Rep. John McCormack (D-Mass.), and other House officers for barring his admission. Powell argued that he was duly elected and met all the qualifications for the office prescribed by the Constitution: age, citizenship, and residency. In a majority opinion written by Chief Justice Earl Warren, backed by a 7-1 vote, the Supreme Court ruled that the House could not impose additional qualifications and requirements beyond those specified by the Constitution.
The Justice Department may already be reviewing Santos’ questionable source of campaign funds. That would not preclude the House, once he is sworn and seated, to also explore that and other campaign misdeeds by referring the case to the House Ethics Committee. It can, after an inquiry, either dismiss the case or recommend to the House punishment, including reprimand, censure, or expulsion, the latter of which requires a two-thirds vote of the House.
There are several problems with the Ethics Committee option. The jurisdiction of the committee is limited to the “Code of Official Conduct,” which deals primarily with members’ behavior and actions as members of the House, and not the activities of first-time candidates for election to the House. The possible exception is their mishandling or illegal raising or use of campaign funds.
Secondly, the committee is completely bipartisan, with five members of each party. That ratio is purposely designed to prevent the committee from being used for blatantly partisan purposes. Consequently, any ethics complaint filed with the committee will meet with a very high threshold to trigger a serious investigation. A fallback possibility would be to create a select committee of investigation. But that would be a non-starter with a majority of the same party as the offending member.
More realistically, any action to be taken by Congress will probably involve more informal, lower profile efforts to deal with the embarrassment to the House generally and the Republican Party in particular. These could include confining the member to minor committee assignments, limiting party campaign funding, and restricting speaking opportunities on the House floor. Call it the “quiet ostracism.”
One of the more recent trade-offs being floated is having Mr. Santos publicly announce he will not run for reelection in 2024. In return, the majority would not support efforts to send his case into the Ethics Committee or back any punishment attempted directly from the floor.
In the final analysis, the House as an institution cannot allow itself to be the object of public ridicule over such a flim-flam scam. Neither party will benefit from dwelling on such phony baloney over an extended period.
Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.