This weekend, presidential candidate Sen. Tim Scott (R-SC) became the latest figure in Washington to call for the expulsion of members of Congress for their controversial views.
In a New York Post op-ed,)" href="https://urldefense.com/v3/__https://nypost.com/2023/10/19/expel-hamas-propagandists-in-congress-and-dont-give-the-terrorists-taxpayer-cash/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCIhjyxGQ$">op-ed, Scott cites pro-Palestinian or anti-Israel statements of members of “the Squad” as examples of officials giving “aid and comfort” to Hamas.
Expulsion and disqualification have come into vogue in Washington as members of both parties seek to bar opponents from ballots or office. It is the ultimate manifestation of our age of rage where expressing opposing views are now considered disqualifying acts for holding office.
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Sen. Scott points to Rep. Rashida Tlaib)" href="https://urldefense.com/v3/__https://nypost.com/2023/10/18/squad-reps-tlaib-omar-leave-up-posts-blaming-israel-for-hospital-explosion-after-biden-denies/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCWalQjOQ$">Rep. Rashida Tlaib declaring that Israel intentionally bombed a hospital in Gaza after U.S. intelligence found that the explosion was likely caused by a Palestinian missile.
He also cites Rep. Pramila Jayapal)" href="https://urldefense.com/v3/__https://nypost.com/2023/07/16/rep-jayapal-declares-israel-is-a-racist-state-eliciting-rage/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDDJj9ajPQ$">Rep. Pramila Jayapal calling Israel “a racist state” and Rep. Ilhan Omar)" href="https://urldefense.com/v3/__https://nypost.com/2023/10/09/ilhan-omar-stokes-outrage-with-plea-against-sending-us-weapons-to-back-war-crime-in-israel/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCaTAX5KA$">Rep. Ilhan Omar previously saying that Jews had “hypnotized the world.” Rep. Alexandria Ocasio-Cortez)" href="https://urldefense.com/v3/__https://ocasio-cortez.house.gov/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDDGoGkGow$">Rep. Alexandria Ocasio-Cortez was also cited for criticism of those supporting Israel as “taking the side of occupation.”
I have previously)" href="https://urldefense.com/v3/__https://jonathanturley.org/2023/10/16/rep-iihan-omar-retweets-false-photo-of-palestinian-children-killed-by-israeli-forces/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDDuYOIkRQ$">previously criticized members of the Squad for reckless rhetoric and condemned)" href="https://urldefense.com/v3/__https://jonathanturley.org/2023/10/19/are-rep-tlaib-the-new-york-times-and-other-media-guilty-of-disinformation-on-the-alleged-hospital-strike/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCAI2v6AA$">condemned the spreading of false or unproven claims on the Gaza hospital explosion.
However, the solution to bad speech is better speech. Indeed, Scott’s op-ed (and the writings of many others) are an example of how free speech can combat disinformation and propaganda without the necessity for censorship or other punitive measures.
Yet, Sen. Scott insists that “any member of Congress who gives [Hamas] aid, comfort or justification is in violation of their constitutional oath and must be removed.”
It is now a familiar refrain. Ironically, it is analogous to the argument put forward by some Democrats to bar Republican members through an alternative means. Those members have called for the use of the 14th Amendment to disqualify Republicans for giving “aid and comfort)" href="https://urldefense.com/v3/__https://jonathanturley.org/2023/10/13/federal-court-asked-to-address-14th-amendment-effort-to-bar-trump/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCX7xhEHA$">aid and comfort” to those who sought to block the certification of President Joe Biden. They have been supported by a host of legal academics.
Rep. Bill Pascrell)" href="https://urldefense.com/v3/__https://thehill.com/people/bill-pascrell__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCVYumqyA$">Bill Pascrell (D-NJ) demanded the disqualification of the 120 House Republicans)" href="https://urldefense.com/v3/__https://jonathanturley.org/2020/12/12/no-friend-of-congress-prascrell-seeks-to-block-120-house-republicans-from-being-seated-in-retaliation-for-signing-supreme-court-amicus-brief/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCssX3ntw$">demanded the disqualification of the 120 House Republicans—including House Minority Leader Kevin McCarthy)" href="https://urldefense.com/v3/__https://thehill.com/people/kevin-mccarthy__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCtgiBNog$">Kevin McCarthy (R-CA)—for simply signing a “Friend of the Court brief” (or amicus brief)" href="https://urldefense.com/v3/__https://thehill.com/homenews/house/529862-20-more-republicans-including-mccarthy-endorse-texas-challenge-to-biden__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDDGc3fwFQ$">amicus brief) in support of an election challenge from Texas.
Expulsion and disqualification demands are both based on the same view that political support for extreme or controversial positions should not be tolerated in members of Congress. It is a dangerous, slippery slope as politicians declare certain views as incompatible with holding elected offices.
Rather than based on a novel constitutional theory)" href="https://urldefense.com/v3/__https://jonathanturley.org/2023/08/21/the-disqualification-of-donald-trump-and-other-legal-urban-legends/__;!!LsXw!SVweaoHVu53jEJw1gNJFkoJLoR6fxh_-gsFuYTCMfd9XS7xvn7H_Ah9IIRUgXio_Hc5NXTtCN8Rl4-FRC75uuDCvg60HBw$">novel constitutional theory, expulsion is based on the inherent authority of Congress to expel members who violate the rules and standards of a house. Courts are generally deferential to Congress given the authority under Article I, Section 5 that “[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
Nevertheless, fewer than two dozen members have ever been expelled. Indeed, three of the then five members of the House had expressed loyalty to the confederacy during the Civil War.
It is telling that, despite our long history of bitter and divisive politics, only five house members have been expelled in the House. Members have realized that expulsions not only deny the right of voters to pick their representatives, but invite endless tit-for-tat measures.
The Framers were well aware of this danger. Before the Revolution, a leading case in England involved a member of Parliament who was expelled for criticism in 1763 of the king for signing 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 defiant constituency. He was again “excluded” from taking office and later convicted of sedition.
Eventually the House of Commons recognized its terrible error and expunged both the expulsions and exclusions. It admitted that it had acted in a manner “subversive of the rights of the whole body of electors of this kingdom.”
The Framers were familiar with the Wilkes case and wanted to avoid such legislative abuse in the United States. The Constitution makes exclusion (in preventing someone from taking the oath of office) effectively a non-starter if he or she otherwise meets the qualifications for office. Most importantly, they imposed the high voting threshold of a two-thirds vote to accomplish an expulsion.
It is unlikely that the calls for expulsion by Sen. 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 the exercise of free speech even with the history of deference to Congress. Moreover, the courts have rejected the use of exclusion in Powell v. McCormack in 1969 as unconstitutional. Expelling a member based on their political views would operate the same as an exclusion since that member would continue to be viewed as ineligible to sit as a member of the House.
Even if it is unlikely to succeed, Sen. Scott’s call only adds to not just the expectations but the appetite of voters for extra-electoral action. Rather than defeat members at the polls, they want to dictate who may represent voters in other states and districts.
Free speech is often the first victim in an age of rage. We have gone through such ages from the very start of our Republic. Rage gives people license to do things that they would not ordinarily contemplate, let alone advocate. That is why rage is addictive. We can come to like it.
In the end, we are distinguished from groups like Hamas by free speech and our other defining rights. They are a covenant of faith between citizens that, despite our disagreements, we will stand by our neighbors in their right to think and speak freely. That includes the right of citizens to select those who will speak for them in a representative democracy.
There is a solution to those who you believe are unworthy for office. It arises every two years as citizens go to the polls to elect their representatives.
