It's Debatable: Should House Speaker be able to remove members from committees

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate the merits a U.S. House speaker removing members of the other party from House committees. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Charles Moster is the Founder of the Moster Law Firm with 8 offices in Texas, author of 12 books, and an award winning playwright and composer.

Moster 1

This is a difficult subject to debate because there is no perfect answer. Although I support the right of the Speaker of the House to remove members of the other party from committees, it raises issues as to whether political participation should be proscribed based on ideology. My rejoinder is that such sanctions are appropriate and, indeed, required, when a House member’s statements pose a direct threat to our democratic system.

As an example, I steadfastly endorsed former Speaker Pelosi’s decision to remove U.S. Rep. Marjorie Taylor Greene from committee assignments given her rabid promotion of conspiracy theories denying the truth of the Sept. 11, 2001 terrorist attacks and that the Parkland school massacre never occurred. If that is insufficient to raise a concern, how about her explicit direction that former Presidents Obama and Clinton be executed along with a barrage of patently anti-Semitic comments directed towards Israel and loving endorsement of Holocaust deniers. And the list goes on and on.

The House of Representatives belongs to all of us and epitomizes everything that our country stands for with an emphasis on those key words in the Pledge of Allegiance – “Liberty and Justice for All”. Hate mongers engaged in the spread of lies are the antithesis of our democracy and – without exaggeration – constitute a deadly cancer in the body politic which must be stricken. The failure to do so will result in deadly consequences as history instructs.

Although I question Greene’s intelligence and most certainly command of history, it appears she is being “spoon fed” the tried-and-true recipe for killing democracy by promoting what has classically been referred to as the “Big Lie”. Not so Trump and Ted Cruz who know exactly what they are doing by denying the legitimacy of the Biden election and (as least as to Trump) nibbling along the borders of antisemitism.

The way to kill democracy is to promote the “Big Lie” which was notoriously penned by Hitler’s propagandist Joseph Goebbels – “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.” Hitler elaborated by adding “that in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie…”.

Greene was properly removed by the former Speaker as she promoted the “Big Lie” – which undermined the integrity and finality of our elections process and, in particular, unleashed the ravages of antisemitism. Whether she is aware of it or not,

Mr. Goebbels would applaud her behavior and tactics and happily embrace the death of America and birth of a new nation founded on the fascist principles of Aryan superiority, suppression of diversity and dissent, resurgence of antisemitism, and the propagation of conspiracy theories and other Big Lies.

The use of the Speaker’s position to exclude miscreants like Marjorie Greene from Committee assignments is courageous. Critically, it rids the body politic of a cancer which lives on hate and awaits the next opportunity to metastasize.

Of course, as Rick will point out, the downside is to engage in acts of exclusion which are seemingly the antithesis of democracy and free speech. I would have to agree with that proposition. However, as I said above, there is not a perfect solution as John Adams knew well when, as a proponent of free speech, he did precisely the opposite by passing the Alien and Sedition Acts during an embryonic period when external threats to America could have vanquished the great experiment.

Greene, Trump, Cruz, and others are direct threats to the survival of America. Perhaps, Marjorie has no clue what she is espousing or how she is being used, but not so Trump and Cruz who, in my opinion, should be investigated for seditious acts against the United States. I believe that Trump is already in the final stages of such investigation.

When the survival of America is at stake, actions must be taken at the highest level of government, to remove the political cancer and save our cherished system. Such was not accomplished in Germany which tolerated and then supported the ascension of the Nazis, Hitler, and his racist agenda buttressed by the “Big Lie”. If the Speaker must use his or her powers to remove committee members to protect the body politic, so be it.

Rosen 1

In November 1966, Adam Clayton Powell, Jr. was duly elected from the 18th Congressional District of New York to serve in the U.S. House of Representatives for the 90th Congress. Pursuant to a House resolution, however, he was not permitted to take his seat because of alleged improprieties he committed in the 89th Congress. In the 1969 case of Powell v. McCormack, the Supreme Court held that neither house of Congress may exclude any person, duly elected by their constituents, who meets all requirements for membership expressly prescribed in the Constitution (i.e., a member must be 25 years of age, a U.S. citizen for seven years, and an inhabitant of the state in which elected).

While the Powell case is not controlling, it is instructive. To a large extent, members of Congress represent the views of the people who put them in office, and their constituents’ views are entitled to be heard in Congress. Provided elected members meet the constitutional qualifications for office, the fact their views may upset some—particularly members of the other party—is flatly irrelevant and not a basis for excluding them from House committees.

Charles discusses U.S. Rep. Marjorie Taylor Greene for statements she made before being elected to Congress. While Greene later retracted a number of her assertions before she was elected, such as denying the Sept. 11, 2001 terrorist attacks and school shootings, some of her statements are concededly bizarre (e.g., Jewish space lasers to shoot down Santa). But Greene has not engaged in any misconduct—criminal or otherwise—and the First Amendment fully protects everything she said. Last Congress’ House Democrats’ exclusion of Greene from committees for her constitutionally protected speech was simply undemocratic. And Greene easily won reelection with nearly two-thirds of the vote.

The current House Speaker’s exclusion of U.S. Rep. Adam Schiff from the House Permanent Select Committee on Intelligence and the Republican House members' removal of U.S. Rep. Ilhan Omar from the House Foreign Affairs Committee is likewise misguided despite Schiff’s repeatedly false assertions about Trump’s collusion with Russia and Omar’s anti-Semitic tropes. Their speech is protected. One possible exception is U.S. Rep. Eric Swalwell’s removal from the Intelligence Committee based on allegations he had an intimate relationship with a Chinese spy. If true, it was not only inappropriate, but irresponsible, for Swalwell to serve on the committee. But that does not mean he should be refused committee assignments not requiring a security clearance.

Moster 2

I am not in disagreement that the removal of members by the Speaker based on speech content raises serious First Amendment concerns. I acknowledged that in my first argument but argued that when such views threaten our democratic institutions they must be proscribed. The constitutional analogue would be the enunciated exceptions to the sanctity of free speech which have long been recognized by the U.S. Supreme Court.

My reference to John Adams, the brilliant Founding Father and chief advocate of the First Amendment, is right on point. Given external European threats to the survival of our fledgling democracy, he supported the enactment of the Alien and Sedition Acts which limited specific speech. Although controversial to this day, I understand the rationale for the prohibition.

Marjorie Taylor Greene’s statements are dangerous and akin to the rhetoric of Adolf Hitler and the early adherents of the Nazi Party. It is historically correct that the failure of the German legislators of the lower house in the Reichstag to censure the insurgent cancer of antisemitism directly led to the ascension of Hitler and the death of millions. Alternative historical narratives ponder the

quintessential question whether the horrors of World War II could have been avoided by silencing Hitler and his followers in its early stages.

Rick’s reference to the statements of Adam Schiff is inapposite as one cannot compare comments linking Trump and Putin to the anti-Semitic vitriol spewing from Greene.

Critically, by failing to remove Greene and other hate mongers, Congress sets forth a floor or “new normal” that cancerous public discourse is not only permissible but accepted conduct.

We have an opportunity now to take the actions which eluded the lower house of the Reichstag – analogous to our own House of Representatives. In so doing, we can avoid the most tragic chapter of history repeating itself.

Rosen 2

Writing in Texas v. Johnson in 1989—which overturned a Texas statute criminalizing the burning of an American flag—Justice William Brennan observed: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Simply put, the First Amendment has no hate speech exception. The federal courts have upheld cross burnings; protests outside military funerals “thanking God for dead soldiers”; racially disparaging trademarks; and the march of American Nazis in Skokie, Illinois—home at the time to many Holocaust survivors. Quoting Justice Oliver Wendall Holmes, Jr., Justice Samuel Alito wrote in 2017: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”

Charles is correct in noting that Representative Greene has made despicable anti-Semitic remarks, but to compare her to Hitler or the Nazis is hyperbolic and beyond the pale. I have heard similar remarks throughout my life—some directed at me. I always believed that the speakers were simply ignorant or stupid or both. Nevertheless, Greene’s statements are fully protected by the First Amendment, and if spoken in the House of Representatives, they are immunized by the Speech or Debate Clause in Article I, section 6, of the Constitution. The voters of Greene’s district overwhelmingly reelected her to office, and like it or not, she is a member of Congress. She should not be excluded from committee positions because of her views.

Charles asserts that I should not compare Greene’s vitriolic statements Representative Schiff’s comments about Trump and Putin. To some extent I agree—what Schiff did was considerably more damaging to the nation than Greene’s anti-Semitic remarks. As Chair of the House Permanent Select

Committee on Intelligence, Schiff made numerous false statements to the press perpetuating the myth that Trump colluded with Russia to win the 2016 election. Schiff is an “election denier,” and he attempted to subvert the administration of a duly elected President. There may be good reasons not to vote for Trump, but Russian collusion is not among them. Yet, I still contend that Schiff should have remained on the Intelligence Committee because that is where his party wanted him.

This article originally appeared on Lubbock Avalanche-Journal: Should House Speaker be able to remove members from committees