This weekend, presidential candidate Sen. Tim Scott (R-SC) became the latest representative in Washington to call for the expulsion of members of Congress for their controversial views.
In one New York Post Comment, Scott cites pro-Palestinian or anti-Israel statements by members of the “force” as examples of Hamas officials providing “aid and comfort.”
Expulsion and disqualification have become fashionable in Washington as members of both parties seek to disqualify opponents from voting or holding office. It is the ultimate manifestation of our age of anger, where expressing opposing views is now viewed as disqualifying actions from holding office.
Senator Scott points to it Rep. Rashida Tlaib They said Israel deliberately bombed a hospital in Gaza after U.S. intelligence determined the explosion was likely caused by a Palestinian rocket.
He also quotes MP Pramila Jayapal Calling Israel “a racist state” and Rep. Ilhan Omar He had previously said that Jews had “hypnotized the world.” Rep. Alexandria Ocasio-Cortez was also cited for criticizing those who support Israel because they are “on the side of the occupation.”
However, the solution to bad language is better language. In fact, Scott’s editorials (and the writings of many others) are an example of how free speech can combat disinformation and propaganda without the need for censorship or other punitive measures.
Still, Senator Scott insists that “every member of Congress gives that.” [Hamas] Aid, comfort or justification violates their constitutional oath and must be removed.”
It’s now a familiar refrain. Ironically, it’s similar to some Democrats’ argument for expelling Republican members in alternative ways. These members have called for the use of the 14th Amendment to disqualify Republicans for “Help and comfort” to those who tried to block the certification of President Joe Biden. They were supported by a large number of legal scholars.
Rep. Bill Pascrell (D-NJ) called for the disqualification of the 120 Republicans in the House of Representatives – including the House Minority Leader Kevin McCarthy (R-CA) – for simply signing a “Friend of the Court Brief” (or Amicus briefly) in support of an election challenge from Texas.
Expulsion and disqualification claims are both based on the same view that political support of extreme or controversial positions among members of Congress should not be tolerated. It is a dangerous slippery slope when politicians declare certain views to be incompatible with holding elected office.
Instead of on a New constitutional theory, expulsion is based on Congress’s inherent power to expel members who violate a House’s rules and standards. Courts are generally deferential to Congress because they have the authority under Article I, Section 5 that “[e]Each House of Representatives may establish its rules of procedure, punish its members for disorderly conduct, and, with the consent of two-thirds, expel a member.”
Yet fewer than two dozen members have been expelled so far. In fact, three of the then five members of the House of Representatives had expressed their loyalty to the Confederacy during the Civil War.
It is telling that despite our long history of bitter and divisive politics, only five representatives have been expelled from the House of Representatives. Members recognized that exclusions not only deny voters the right to choose their representatives, but also lead to endless settlement measures.
The Framers were well aware of this danger. Before the Revolution, there was an important case in England involving a member of parliament who was expelled from Parliament in 1763 for criticizing the king over the signing of a peace treaty with France. John Wilkes was promptly arrested and expelled from the House of Commons. While he was forced to flee into exile, he continued to be re-elected by an equally recalcitrant electorate. He was again “excluded” from taking office and later convicted of sedition.
Finally, the House of Commons recognized its terrible mistake and repealed both the expulsions and the expulsions. It admitted that it had acted in a way that “undermines the rights of the entire electorate of this kingdom.”
The authors were familiar with the Wilkes case and wanted to avoid such abuse of law in the United States. Under the Constitution, disbarment (preventing someone from taking the oath of office) is effectively barred if he or she otherwise meets the requirements for office. Most importantly, they introduced the high voting threshold of a two-thirds majority to achieve expulsion.
It is unlikely that calls for expulsion from Senator Scott or others will succeed given this history and these limitations. It is also far from clear that courts would allow the expulsion of a member for exercising free speech, even if he or she has shown deference to Congress in the past. Additionally, the courts rejected the use of the exclusion as unconstitutional in Powell v. McCormack in 1969. Expelling a member based on his or her political views would have the same effect as expulsion, as that member would still be considered ineligible to serve as a member of the House of Representatives.
While unlikely to succeed, Senator Scott’s call not only raises expectations but also voters’ appetite for non-electoral action. Instead of defeating members at the polls, they want to dictate who gets to represent voters in other states and districts.
Free speech is often the first casualty in a time of anger. We have lived through such ages since the beginning of our republic. Anger gives people permission to do things they normally wouldn’t consider, let alone approve of. That’s why anger is addictive. We can like it.
Ultimately, what sets us apart from groups like Hamas is freedom of expression and our other defining rights. They are a covenant of faith between citizens that, despite our differences, we stand by our neighbors in their right to free thought and expression. This includes the right of citizens to choose those who speak for them in a representative democracy.
There is a solution for those you feel are unworthy of office. It takes place every two years when citizens go to the polls to elect their representatives.