House Panel Debates How to Discipline Its Members

WASHINGTON (CN) — A House subcommittee held a hearing on Thursday afternoon regarding powers the chamber holds to discipline its members. 

Steve Cohen, a Tennessee Democrat who chairs the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, opened the hearing by explaining that even though it’s predicated by the events of Jan. 6, the discussion should be theoretical rather than targeted. 

The hearing comes more than two months after the siege on the Capitol building, and its effects still echo through the legislative calendar. Cohen, however, wanted to broaden the scope of the debate.

“To be absolutely clear, my hope in holding this hearing is not to increase the tension inside the people’s House, an institution that we all proudly serve in,” he said. “Rather, I hope this hearing will serve as a productive exercise in educating ourselves and the public about the scope of Congress’s authority to maintain discipline within its own ranks as informed by relevant precedence and policy considerations.” 

It certainly began that way, as the subcommittee called on four expert witnesses to testify on the breadth and limits of disciplinary authority that Congress holds.

Jack Maskell, a retired legislative attorney for the Congressional Research Service, was the first to testify. He focused mostly on how useful expulsions and censures can be. 

“Concerning member of conduct, there is a direct and expressed authority in the Constitution for each house to address and, if need be, to discipline their members regarding their conduct,” he said. 

While Congress can expel a member due to their misconduct, this action should be used sparingly and fairly, he said, or else the expulsion would be at odds with the principles of democracy.  

According to Maskell, censure – a formal vote by a majority of members who disapprove of a colleague’s conduct – is an appropriate if there’s a breach of the integrity of the House, or if an individual member’s rights and reputation have been affected. 

Josh Chafetz, professor at the Georgetown University Law Center, touched on how the chamber’s disciplinary powers, like most afforded to Congress, are rooted in English parliamentary practice. 

“Importantly, the House of Commons began exercising this power at precisely the moment it was coming into its own as an institution that could check and counterbalance the Crown,” he said.  

He explained that in the 16th century, the British House argued that it, not the royal courts, had the authority to discipline its members. And in 1716, it did just that: Several members were expelled for aiding a rebellion the previous year. 

Chafetz argued that it’s not only the chamber’s right but its duty to discipline its own members, because if other institutions are seen “cleaning up Congress’s messes,” it erodes public trust in the institution. 

James Wallner, resident senior fellow of governance at the R Street Institute, argued that discipline and retaliation should be tailored to the offense. Rather than leaning on its powers on members following rules that aid misconduct, he said Congress should change those rules. 

Referring to the Jan. 6 Capitol riot, Wallner also issued a plea to civil society: “It is better to resolve our disagreements via debate, deliberation and compromise instead of through force, violence, and intimidation.” 

Former House general counsel Stanley Brand closed out the testimonials by arguing against judicial intervention into the chamber’s disciplinary affairs.

“The proper place to determine the applicability of House rules governing member conduct is in the House,” he said.

The atmosphere shifted once questioning began. After a few subcommittee members asked about disciplinary context and procedure, Representative Jim Jordan, an Ohio Republican, used his time to discuss more newsworthy matters. 

He asked Wallner if Democrats were weaponizing the disciplinary rules and then launched into a rant about how the Democrats were allegedly stripping the Republican minority of their legislative powers. He also asked if it is appropriate to “kick someone off their committee assignments” for statements they made prior to reaching office, in reference to Georgia GOP Congresswoman Marjorie Taylor Greene.  

Jordan also read out a list of Democrats who objected to the Electoral College votes in favor of former President Donald Trump in January 2017 in order to argue that the outrage over similar objections in the 2020 general election was unfounded. 

In response, Democratic Congressman Jamie Raskin of Maryland used his time to respond to Jordan’s “waterfall of counterfeit outrage and indignation.” Officials from both parties have raised objections over the electoral vote certification process for years, he said, “but only one president, with members of his party in tow, has incited a violent mob to attack Congress during the actual execution of its Electoral College duties.” 

What was intended as a historical and conceptual debate quickly became another partisan sparring match familiar to viewers of cable television and social media users.

Towards the end, Congresswoman Cori Bush, a Missouri Democrat, painted a broader picture of the issues at hand.

“It seems to me that some members of Congress may have never held a job before,” she said. “If they had, they would certainly understand that disregarding rules of conduct would result in consequences, that their behaviors are a reflection of the people they represent.” 

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