12/07/23
12/7/2023The U.S. House last Friday voted 311 to 114 to expel Republican member George Santos. It was only the sixth time in the history of the House that members have taken such an action. Republicans split pretty evenly on the vote, with 105 GOP members voting to expel Santos and 112 voting to allow him to retain his seat. Democrats voted almost unanimously in favor of expulsion: the Democratic tally was 206 to 2.
To expel a member from either house of Congress, the U.S. Constitution requires a two-thirds affirmative vote of that body (66 2/3 percent). That’s a high bar in itself, but the vote to remove Santos was about 73 percent affirmative, well above the bar.
To make the expulsion even more unusual, it was achieved when the House was controlled by Santos’ own party. What’s more, it was the first time the House has ever expelled a member who had not been convicted in a court of law.
That’s not to say Santos didn’t deserve it. In May, federal prosecutors announced 13 charges against him, including wire fraud, money laundering, theft of public funds, and making false statements to Congress. In addition, he had lied repeatedly during his election campaign about his career and education, thereby misleading his district’s voters.
At any rate, he’s gone. Constituents of New York’s 3rd House District on Long Island will choose their new representative in a special election called by New York Governor Kathy Hochul, to occur probably in February.
Now the spotlight pivots to the U.S. Senate, specifically to Democratic Senator Bob Menendez of New Jersey. Menendez was chair of the Senate Foreign Relations Committee, a position he has now voluntarily relinquished. He faces recent federal charges of bribery and corruption in two separate contexts.
In the first, he allegedly acted as a foreign agent by using his powerful Senate position to secure military aid for Egypt, despite that nation’s poor human rights record. In the other, he reportedly accepted money, gold bars, a new car, and other valuables as payoff for helping three wealthy northern New Jersey businessmen and trying to sidetrack investigations into their business activities.
The New Jersey Senator is no stranger to such accusations. In 2017 a court tried him for unrelated but similar federal corruption charges. Then, as now, he stepped down from his Senate Foreign Relations Committee leadership post. (Back then Republicans were in the majority in the Senate, so Menendez was the “ranking member”—that is, the top committee member in the minority party.)
The jury in that case deadlocked, and the judge declared a mistrial. The U.S. Justice Department chose not to refile the charges. Menendez, as expected, claimed the outcome exonerated him. He continues to represent his state in the U.S. Senate.
Menendez’s personality and deportment bear little resemblance to Santos’ antics and attitude, the latter labeled by one commentator as “cartoonish.” But as a legal matter, Menendez’ alleged federal crimes rise to a level similar to those of Santos. If Menendez were to be found guilty, he could be imprisoned for up to five years.
There are other similarities between Santos’ and Menendez’ problems. Each of them has had a number of colleagues calling for their resignations: dozens of House members in Santos’ case, and at least 30 Senators in Menendez’s situation. Each of them belongs to the majority party in his respective house, with extremely narrow majorities in each body.
In addition, both the House Committee on Ethics and the U.S. Senate Select Committee on Ethics investigated their respective accused colleagues.
But there’s a crucial difference in how the House and the Senate handle ethics complaints. If you’re accused of questionable activity, you’re much better off as a Senator than as a Representative.
That’s because the House, in addition to its Ethics Committee, is also served by the Office of Congressional Ethics (OCE). That’s an entity the House created in 2008, spearheaded by Democratic Speaker Nancy Pelosi, to investigate violations of any law, rule, regulation, or standard of conduct by House members, officers, or employees.
The OCE makes recommendations to the House Ethics Committee on whether to look further into such instances. Its existence provides a way for the public to file an ethics complaint against a House member in order to encourage the House Ethics Committee to act.
The same year that the OCE was created—2008—the Senate considered, but rejected, a similar committee—the Office of Public Integrity. Consequently, complaints about Senators go directly to the Senate Ethics Committee, which (like the House Ethics Committee pre-OCE) is highly forgiving of its members’ unethical behavior.
Over the last 10 years, only three percent of the Senate committee’s investigations have found a Senator guilty of an ethics violation, and only five percent resulted in public reports. In contrast, the OCE in the House has found violations in 41 percent of its cases, and 43 percent of its cases resulted in public reports.
So what will the Senate do with Bob Menendez? Yes, he’s innocent of alleged crimes until proven guilty. So is George Santos. But the House and Senate, under the Constitution, determine the fitness of their colleagues to serve in their respective bodies independently of the federal court system.
The OCE was intimately involved in the House investigation of Santos, by passing on information about him to the House Ethics Committee. The Senate Ethics Committee has yet to recommend to Senators how to handle Menendez.
And it isn’t as though Menendez’s constituents are standing up for him. A recent respected poll in New Jersey found 70 percent of that state’s residents want him out of office.
(New Jersey residents, probably as a result of that state’s political history, share a jaundiced attitude toward their politicians generally. Nearly 60 percent of those polled find New Jersey politicians “very” or “somewhat” corrupt. Only nine percent say they are “not at all” corrupt.)
If about 50 percent of Senate Democrats were to vote to kick Menendez out of the Senate, and Senate Republicans were virtually united to do so as well—which would match the results of the Santos expulsion vote in the House—Menendez would be gone. And so would the Senate’s Democratic majority, at least until he were replaced.
The challenge for Democratic Senators is to weigh taking that plunge without the kind of impetus provided in the Republican House by its Office of Congressional Ethics (OCE). Whether a careful investigation of Menendez is possible in a Senate without its own OCE is a major question. ♦
