As several members of Congress have been mired in disturbing scandals and misconduct allegations, calls for expulsion have mounted in frequency and urgency. The House Ethics Committee, as a balanced bipartisan committee charged with maintaining the integrity of the House, is uniquely positioned to answer these calls and it must meet this moment by finally establishing a clear standard for expulsion—one that cannot depend on actions taken by the executive branch like indictment or conviction. 

Last week the House accepted the resignations of Reps. Eric Swalwell and Tony Gonzales as they faced down potential votes to expel them from the chamber. Their resignations are entirely appropriate given the disturbing allegations of sexual misconduct against both men. This week, the Ethics Committee prepares for a hearing to determine what consequences will accompany its findings that Rep. Sheila Cherfilus-McCormick had committed violations of House rules and that the underlying criminal and ethical conduct had been proven by clear and convincing evidence. The Committee found that Cherfilus-McCormick accepted $5 million in federal disaster relief funds for her family’s company but then used the money for her campaign account and personal purchases. Another member facing calls for expulsion, Rep. Cory Mills, is the subject of a House Ethics investigation of allegations that he violated ethics rules, campaign finance laws and “misconduct with respect to allegations of sexual misconduct and/or dating violence.” Both members should resign their seats in the House. While every person is entitled to their day in court, the public is entitled to elected leadership that does not abuse their roles or engage in gross misconduct.

The Speaker of the House has called for Cherfilus-McCormick’s expulsion, stating that “the Ethics Committee has gone through all of its processes, and they found some alarming facts […] and so I believe it’ll be the consensus of this body that she should be expelled. I mean, that certainly rises to the level that’s needed.” Johnson has not taken the same position on Mills, claiming deference to the ongoing Ethics Committee process. Previously, when the House was considering expulsion of Rep. George Santos following his indictment, Speaker Johnson questioned “the precedent of expelling a member who had not yet been convicted of a crime.”The House subsequently voted to expel Santos in a bipartisan vote before he ultimately pled guilty to federal crimes.

Speaker Johnson’s inconsistent positions illustrate the need for intentional decisions or guidance by the House Ethics Committee to establish a clear, objective and consistent standard for what behavior warrants levying the ultimate discipline of expelling a duly elected member of Congress. What processes are or should be required? What underlying misconduct begets a decision that can decide the balance of power in the institution? These questions must not be merely theoretical.

The expulsion power, its history and significance

Article I, Section 5, Clause 2 of the U.S. Constitution grants the House exclusive authority to discipline its members for misconduct, a power that has been exercised relatively rarely throughout congressional history. Congress has exercised a range of disciplinary measures against its members, ranging from reprimand and censure—public acknowledgements of wrongdoing—to the ultimate punishment of expelling the member from the House. Beyond granting this power to discipline, the Constitution does not provide a standard for expulsion, requiring only that two-thirds of members agree that a member must be expelled. Even if a member is expelled, under existing legal precedent they are allowed to run again and must “almost certainly” be seated if they win re-election.

Under current practice, there is no predictability of what underlying misconduct justifies expulsion, creating questions about the politicization of the process that undermines public confidence. History shows that expulsion has been a measure of last resort for the House. Only six representatives have been expelled during the course of American history: three for “disloyalty to the Union [and] fighting for the Confederacy”; two for convictions of various public corruption crimes; and one, Santos, following federal indictment on a range of federal crimes and ethics rule violations. The Santos expulsion was notable because he was a freshman member with few connections and his ouster stood in contrast to the chamber’s general deference to the criminal process before taking action. In other cases of misconduct, the House has exercised its disciplinary power through censure and reprimand for numerous other members. More members have resigned before expulsion or disciplinary action was taken. How the committee and the House handle the Cherfilus-McCormick and Mills matters may determine whether Santos was an outlier or the body is taking a more aggressive posture following increased public concern about corruption.

The conduct of the members in the current Congress against whom expulsion has been mentioned must not be condoned. The public evidence of their misconduct is documented and alarming, and these members should face consequences, including through the legal system as appropriate. No member of Congress is entitled to holding a seat in Congress and the public is entitled to representatives in Congress who they can trust. 

The Ethics Committee’s role now and in the future

The House Ethics Committee and its staff work diligently to ensure that members are aware of the rules governing their conduct, that they are advised accurately when they have questions and are investigated thoroughly when they are accused of violations. The Committee will render its assessment of what penalty is appropriate for Rep. Cherfilus-McCormick’s egregious violations of House Rules. But the Constitution does not require an ethics committee to exist, and an expulsion vote need not arise through the Ethics Committee process: members are merely tasked with the responsibility of “punish[ing] its members for disorderly behaviour.” Even if the Committee recommended a lesser sanction, or deems that past precedent does not warrant expulsion, Rep. Cherfilus-McCormick can be expelled if the votes of two-thirds of the House support it. As with most things on Capitol Hill, any member can be expelled if the votes are there. But in order to give the public confidence that this power is being exercised fairly, Congress should endeavor to establish and follow a consistent standard. 

The Ethics Committee’s proceedings will hopefully provide some measure of transparency, consistency and clarity, with the full chamber following suit. But should questions remain, the House would do well to establish a working group to examine what standard should apply for expulsion. There is a strong argument that there have not been enough cases to draw any consistent precedent, especially because prior cases reflect distinct periods in American history, such as the attempted return of Confederate officers following the Civil War. Notably, Congress has repeatedly failed to even consider whether the Constitution’s insurrection ban, codified during the same Reconstruction period, should be applied to members who supported the insurrection at the Capitol of January 6, 2021. 

The committee working group process has been used before, including in recent years, when the Committee appointed a bipartisan working group to draft proposed regulations governing House members, officers and employees’ outside positions. One obvious option is to adopt the “high crimes and misdemeanors” standard for expulsion since Congress is already familiar with and has substantially more relevant precedent applying that standard given its impeachment power. As Congress.gov explains, this process and standard “has been used to remove government officers who abuse the power of the office; conduct themselves in a manner incompatible with the purpose and function of their office; or misuse the office for improper or personal gain.” That said, Congress may decide that such a standard is both too permissive and too restrictive for the kind of conduct that they deem so incompatible with public service that it demands overturning the votes of a members’ constituents.Two clear guideposts that the House must apply should be that expulsion must be assessed independent of any federal or other prosecutorial process and must scrupulously avoid partisan gamesmanship.

Congress’s expulsion authority is exclusive and must be exercised independent of the prosecutorial process

The disciplinary power of the House stands separate and apart from any criminal or civil liability for the misconduct at issue. It is a means by which the House may punish the member themselves for the broader purpose of maintaining the integrity of the House as an institution. The House is not bound by any list of mandatory offenses requiring expulsion and there is no discernable standard or process required before an expulsion vote may be warranted. This lack of a clear standard means that the public does not have transparency, nor is there consistency that can give members and the public a sense of what behavior will justify the House intervening to remove a member who had previously been selected through a valid democratic election process. Furthermore, the lack of consistency can give rise to the impression that expulsion decisions are political and are more likely to be meted out to a political opponent.

The House “can exercise the power of expulsion without waiting for a criminal conviction.” While criminal conviction as a standard may be appealing because it implies that the member was afforded due process, members should be wary of treating it as a dispositive factor. One hurdle is that the Constitution’s speech or debate clause which provides members immunity for “legislative acts” can prove to be a hurdle for gathering evidence or conducting criminal propositions related to their work. This concern is heightened at a moment where the Trump administration has repeatedly attempted to pursue politically motivated prosecutions against the president’s perceived enemies including former FBI Director James Comey, Federal Reserve Chair Jerome Powell, New York Attorney General Letitia James and New Jersey Representative LaMonica McIver.  Requiring indictment or conviction as a threshold may also be too high a bar if a member’s behavior was not prosecuted by the DOJ, meaning that the executive branch effectively could control the House’s ability to expel a member.

Because prosecution can be politicized, it is critical, as a separate and co-equal branch of government, that Congress not condition its exclusive authority to discipline on decisions or actions of the executive branch. While DOJ, or even state government, proceedings may inform the House’s consideration of a member’s potential misconduct, those bodies’ decisions to prosecute (or not) or a jury’s decision to convict (or not) must not be dispositive to the exercise of congressional power. The House Ethics Committee underscored the importance of this independence when it continued its own independent proceedings against Rep. Henry Cuellar after he was indicted by the DOJ.

Partisanship undermines the public confidence in the institution

Given Congress’ low approval ratings and current public dissatisfaction with the federal government, the House must take a cautious approach to using what is essentially a nuclear option with regard to its membership. There are a number of tools at the House’s disposal to expose misconduct, including investigations of credible allegations, and to build political pressure for members to address and correct misconduct, including public statements from other members. The House has exercised pressure to address members’ behavior through removing them from leadership positions or stripping their committee assignments. Those tools appear to have not been used in the current four cases, although Swalwell and Gonzales did resign following public pressure from media reporting and calls for expulsion votes before any official action could be taken.

The exceptionally close margin of majority in the current House inevitably invites scrutiny of why expulsion has become the desired measure of discipline now. A decision to expel any member establishes a real possibility of shifting the balance of power, creating serious concerns about whether pursuit of expulsion or opposition to it as a disciplinary option may be motivated by a desire to challenge or preserve the majority’s ability to govern. If Anthony Gonzales deserved to be expelled, it should not have taken the Swalwell scandal to facilitate his ouster. If Sheila Cherfilus-McCormick deserves to be expelled, Cory Mills is not a necessary component. His corruption has already deserved disciplinary action. Although members should be treated consistently regardless of party or seniority, the public should not have to wait to get rid of a corrupt politician until a second one of the opposite party emerges.

Conclusion 

After 250 years with only six expulsions from the House of Representatives, calls to expel four members this month have shown a new propensity to resort to the ultimate punishment and made clear the need to establish an objective standard to do so. It is critically important that the House, the Ethics Committee and members take responsibility to maintain the integrity of the House and its proceedings. It is also critically important that the standards for using its powerful disciplinary power are clear, and applied transparently, consistently, and objectively. Congress and the House Ethics Committee have both the tools and the mandate to do so.