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Excluding lawmakers under 14th Amendment no easy task

It may not be the tool some Democrats think it is to use against members who voted against certifying Biden's election results

Workers hang flags Monday on the West Front facade for the inauguration as a man carries an “impeach” sign past the Capitol.
Workers hang flags Monday on the West Front facade for the inauguration as a man carries an “impeach” sign past the Capitol. (Bill Clark/CQ Roll Call)

In the days following a violent attack on the Capitol by supporters of President Donald Trump, Democrats have increasingly called for repercussions against members of Congress who backed his efforts to overturn the results of the November election.

Most of the partisan ire has focused on the more than 140 Republicans who voted against certifying President-elect Joe Biden’s victory.

“They have violated the 14th Amendment,” freshman Rep. Cori Bush, D-Mo., said on Twitter, pushing to expel lawmakers who voted against certification.  “We can’t have unity without accountability.”

However, the primary tool Democrats have discussed — a clause of the post-Civil War 14th Amendment — may not provide the outlet they’re looking for.

The third clause of the 14th Amendment provides Congress with the power to exclude representatives who “shall have engaged in insurrection or rebellion … or given aid or comfort to the enemies thereof.”

Simply voting against certification of the electoral college doesn’t meet that bar, according to Indiana University Law School professor Gerard Magliocca.

“My view is the members who voted against the certification didn’t do anything unlawful or unconstitutional,” Magliocca said. “People might not like it, and they can be criticized for doing that, but I don’t see it as grounds for an exclusion or an expulsion.”

However, if lawmakers participated in the rally before the attack on the Capitol or communicated with the rioters, that would change the calculus, he said.

Assessing a representative’s actions outside the vote becomes more nuanced, said University of Pennsylvania law professor Kermit Roosevelt. There may be a difference between a lawmaker tweeting specific information that potentially puts another member in danger and Sen. Josh Hawley, R-Mo., raising a fist in support of the crowd. 

“The question then is: Did they cross the line in terms of participating?” Roosevelt said. “Someone who tweets out the location of the Speaker of the House is arguably participating. Someone who raises a fist in support of the protesters is not participating.”

Magliocca also pointed out that Congress has never tried to use the 14th Amendment to expel a member, and one who is “excluded” under that amendment could have a case in court. The Supreme Court has not ruled on the constitutionality of an exclusion under the amendment, or on the interaction with Congress’ separate power to expel a member through a two-thirds vote.

Congress has never expelled a member and then excluded that person under the third clause of the 14th Amendment, uses of which has mainly been limited to denying former members of the Confederacy seats in Congress after the Civil War. In 1898, Congress passed a statute ending the exclusion of members for that purpose.

Congress last used the 14th Amendment to exclude a member in 1919 and 1920, when the House refused to seat Victor Berger for his opposition to American involvement in World War I. A socialist, Berger was convicted under the Espionage Act before the Supreme Court overturned the conviction.

After his exclusion, Berger eventually won the seat again and the House allowed him to serve. Berger eventually served three terms.