Of the many, many streams of chaos that are swirling around the House Republican caucus, none is as truly bizarre and captivating as the saga of Rep.-elect George Santos of New York. On Dec. 19, The New York Times pointed out that he’d embellished, spun or outright fabricated large chunks of his biography. Practically every day since then has brought some new jaw-dropping revelation about his mendacity.
As of Thursday, multiple law enforcement agencies were investigating Santos’ background, from the U.S. attorney in Brooklyn to the state attorney general to the Nassau County district attorney, the last of whom is also a Republican. Among the major questions being asked: Just where did Santos get the hundreds of thousands of dollars that he lent his campaign?
It’s not exactly a good look for the young lawmaker-to-be.
It’s not exactly a good look for the young lawmaker-to-be. And yet, there’s no way to keep Santos from becoming the next congressman from New York’s 3rd Congressional District.
Santos’ seat is safeguarded in part thanks to a 1969 Supreme Court case called Powell v. McCormack. Rep. Adam Clayton Powell, D-N.Y., had been re-elected to his Harlem-based seat in 1966 despite alleged ethics violations, but he was blocked from taking his oath of office when the next Congress convened. Powell took his case against House Speaker John McCormack all the way to the Supreme Court, which eventually ruled in his favor.
Chief Justice Earl Warren’s majority opinion determined that while the Constitution says each house of Congress “shall be the judge of the elections, returns, and qualifications of its own members,” it’s a post-facto power. In other words, once candidates have been elected, nothing can be done to prevent them from being sworn in. Any potential disciplinary action would have to wait until after they moved under the House’s jurisdiction.
By the time the Supreme Court had issued its ruling, Powell had been re-elected again in 1968 — and seated. Congress then passed the Federal Contested Elections Act, enacted in 1969, which makes clear that in the event of a disputed election, Congress gets to make the final call. It’s only rarely been invoked, including once each in the 1980s and the 1990s, respectively, when both candidates have claimed victory. But that’s not the case here — Santos clearly won his race, and his opponent, Democrat Robert Zimmerman, hasn’t argued he should be seated in his stead.
But while calls from the commentariat to block Santos’ swearing-in are wishful thinking, nothing says he has to stay in Congress for long. The Constitution also says each legislative body can “punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” As I noted earlier this year, only five members have ever been expelled from the House, most of whom were kicked out for supporting the Confederacy during the Civil War.
But the brazenness of Santos’ lies goes beyond what’s become the unfortunate norm — like, who lies about his mother dying in the Sept. 11 attacks? That his voters were unaware of his lies during his midterms campaign also helps bypass the House’s typical hesitation against disciplining conduct that predates a lawmaker’s election.
For now, though, the House GOP leadership is still backing Santos, if only in its silence. Part of that decision is clearly strategic, especially on the part of Republican leader Kevin McCarthy of California. Republicans will hold a slimmer majority than many predicted, and McCarthy needs every vote he can get to secure the speaker’s gavel. House Republican Conference Chair Elise Stefanik of New York has also kept mum, despite her support of Santos during the campaign. I’m not normally that keen about the odds of the House Ethics Committee actually recommending serious consequences. But not all members of the New York delegation are so sure about him. Republican Mike Lawler, who also flipped a House seat in New York last month, called on his colleague-elect to fully cooperate with the investigations. Rep. Nick LaLota, a fellow incoming GOP freshman from a neighboring Long Island district, went further, calling for a House Ethics Committee investigation. I’m not normally that keen about the odds that the House Ethics Committee will actually recommend serious consequences — but that’s where any attempt to expel Santos would likely have to begin. It’s not impossible to picture the committee recommending expulsion depending on what turns up in the various investigations. From there, yes, two-thirds of the House is a high bar to hit, but that shouldn’t be a reason not to try. Think about it this way: There’s a world of difference between a Republican siding against, say, former President Donald Trump and opting to boot Santos. Even if McCarthy and Stefanik are eventually opposed, there’s nothing stopping rank-and-file members from deciding they don’t want Santos hanging around the Capitol. In this case, it seems like a safer bet for Republicans to roll the dice on winning a special election for the seat than to throw their backing behind him. The whole ethical justice of the situation is just a bonus.
Hayes Brown is a writer and editor for MS NOW Daily. 
