The Congressional GOP is loaded with extremists, insurrection sympathizers who traffic in deliberate disinformation and conspiracy theories. They are dangerous. Their very presence is a threat to some Democratic Members of Congress and no-one should have to endure that in their workplace.
The US Constitution provides the means for both House and Senate to impose a range of disciplinary measures on their members, including expulsion. That is the measure required here. Congress needs to expel these dangerous members.
But contrary to popular notions about Amendment XIV Section 3, it is not about how to expel a member, it’s the exact opposite. It actually describes how to prevent a member from being expelled – and that’s the good news.
Stick around and I’ll explain how the framers of this Section of the Constitution very cleverly worked out how to win by losing.
Amendment XIV, Section 3* states:
No person shall be a Senator or Representative in Congress, …who, having previously taken an oath, as a member of Congress, …to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
Section 3 of the Fourteenth was originally a temporary measure proposed in 1866 to limit confederate participation in politics after the Civil War. In an article for Just Security, the foremost legal historian on this Amendment, Mark A. Graber, explained:
[It was] Senator Jacob Howard of Michigan [who] proposed, with a few tweaks, the Section 3 we have today. That Section 3 replaced temporary disenfranchisement with a permanent officeholding ban (both federal and state) while limiting the subjects of the ban to persons who, holding certain offices, had previously taken an oath to support the Constitution.
Professor Graber added,
Section 3 would, of course, apply to any future insurrection.
It does. However, Amendment XIV doesn’t include any kind of process for adjudging culpability. Does there need to be an investigation by law enforcement or a judicial process? XIV §3 doesn’t say and those who framed this Amendment were completely silent on the subject.
A review of the basic parameters of Section 3 suggests it is the best legal framework available for addressing the extraordinary events at the Capitol with respect to the eligibility of participants to hold public office.
The first question under Section 3 is who decides whether someone is ineligible. […] With respect to sitting members of Congress, Section 3 must be enforced internally, because the Constitution contemplates no other disciplinary process.
In summary, with respect to a sitting member:
• culpability is determined internally by the members of the US House or Senate
• when the misconduct involves insurrection or giving aid or comfort to the Government’s enemies, XIV §3 specifies one and only one punishment: expulsion
• when expulsion is on the table, there is a two-thirds vote requirement.
This last stipulation is written into XIV §3 in its second and final sentence:
But Congress may by a vote of two-thirds of each House, remove such disability.
It is this two-thirds requirement that is seen as the insurmountable stumbling block because of the political party ratios in both chambers. In the US House, Democrats hold a majority that’s just a fraction over 51%; in the Senate, it’s a fraction over 50% with VP Harris being a member by virtue of her position as President of the Senate.
Neither is anywhere near the two-thirds needed to rid Congress of its treacherous members via a motion to expel. In terms of numbers, two-thirds in the Upper House would be 67 Senators, and 288 Representatives in the Lower House. Of one thing we can be absolutely certain: 17 Republican Senators and 67 Republican Representatives will not be co-operating with any attempt to remove their members, regardless of how unfit those members are for office.
Republicans are therefore confident that none of them can be expelled. They shouldn’t be. Because they are wrong.
They are wrong because they are foolishly misreading the crucial last sentence in §3:
But Congress may by a vote of two-thirds of each House, remove such disability.
The three crucial words are these: remove such disability.
Let’s begin by clarifying what the framers meant by disability.
The disability in this instance refers to the US Constitution excluding from office anyone who has engaged in insurrection or supported insurrectionists. In the simplest terms, the Constitution dis-ables them from holding office.
To make it simpler still, the modern equivalent of “remove such disability” is “nullify the disqualification”. So the modern translation of XIV §3 is:
If any person who, having sworn an Oath to uphold the US Constitution, then engages in insurrection or supporting and helping insurrectionists, they are disqualified from holding a seat in Congress. But Congress may by a vote of two-thirds, nullify the disqualification.
Even simpler still: if a sitting member engages in or supports an insurrection, XIV §3 unequivocally disqualifies them from holding office and the only way to lift the disqualification is if two-thirds of the chamber vote to let them off the hook.
To reiterate: contrary to popular notions about Amendment XIV §3, it isn’t about how to expel a member, it’s the exact opposite. It describes how to stop a seditious member from being expelled. In essence, Amendment XIV §3 requires two-thirds of the US House or Senate to vote to exonerate seditious members so they can stay in Congress.
To ensure the expulsion of the seditious scofflaws in Congress, Democrats need to file two motions. The first is a motion declaring that
Representative/Senator [full name] publicly supported the insurrectionists who stormed the Capitol Building on January 6, 2021. Therefore, under the US Constitution Amendment Fourteen, Section 3, they have given aid and comfort to seditious enemies who breached the building and engaged in vandalism, theft, terrorism, assault, grievous bodily harm and murder.
The aim of this motion is to establish the disability and it needs only a simple majority. Once that motion is passed and the disability formerly established, a second motion is now required by XIV §3 to “remove the disability”, i.e. a motion stating that the member should be permitted to keep their seats in spite of violations under Amendment XIV §3.
It is mandated by the US Constitution, Amendment XIV, Section 3, that to override the penalty prescribed – that [name] may never hold office at any level in the United States – this chamber can by a two-thirds vote remove the disability so that [name] may remain in office.
I therefore move to remove from [name] the disability of aiding and abetting the insurrection of January 6, 2021, in order for [name] to remain in elected office.
It should be noted here that the mover of a motion may vote against their own motion. Therefore a Democrat can move this motion and vote against it.
I have no doubt whatsoever that every Democrat in the House and Senate would vote against removing such disabilities from the seditionists among them, thereby ensuring that none receive the two-thirds majority needed for them to keep their seats.
It may have been framed that way in 1866 to more easily rid Congress of Confederate dissidents who were already seated. It certainly appears to be the only way the two houses of Congress can remove the current crop of incumbent dissidents.
It’s somewhat ironic that the Republicans of 1866 provided a means of dealing with a Republican insurrection in 2021. Thank goodness they did. Without it, Members of Congress would be reliant on law enforcement agencies and the courts to deal with the hostile element in their midst, a process likely to take several months if not years. No-one should have to live and work in an atmosphere of unpleasantness, uneasiness and stress with those who have time and again demonstrated a total lack of respect for the lives and wellbeing of those they oppose.
For this reason alone, I urge Democrats in both houses to consider filing motions they want and expect to lose. In the short term, losing may be the best tactic they have to gain the justice they sorely need.
*Amendment XIV, Section 3, was trimmed down to show only the wording relevant to the issue under discussion. Click on the link provided to read the clause in full.