Alabama U.S. Rep. Mo Brooks of Huntsville is confronting rare political waters: He could become the first Alabama member of Congress to be censured.
The rarities also place Brooks in some unsettling company: If his censure is approved in the House of Representatives, the Huntsville Republican would become the first Congressman to face disciplinary action for inciting an insurrection since the Civil War more than 160 years ago.
“In the modern era, over the last 100 years, the only censures in the House have been for scandals, either financial or sexual scandals,” said Allan Lichtman, a professor of history at American University in Washington, D.C. “If Brooks was censured for inciting insurrection, that would be unprecedented in the modern era for the United States.”
He added, “You have to go back to the Civil War when some were censured for supporting the Confederacy. It would be a profound statement of reprimand against the representative to be censured for such an unpatriotic act.”
Brooks, on Tuesday, released a lengthy news release defending himself against the censure resolution that was introduced by Democratic Reps. Tom Malinowski of New Jersey and Debbie Wasserman Schultz of Florida. In the statement, Brooks denied prior knowledge about the January 6 insurrection at the Capitol building following a fiery speech in which he implored American “patriots” to start “taking down names and kicking ass.”
Brooks, in defending himself as a “square” who never smoked tobacco and has never been in trouble with the law, said he is not associated with nor has he communicated with the anti-government groups that breached the Capitol and ransacked the historic building while Congress was in session. Brooks said he was in the building at the time it was inundated by violent Trump supporters, and that his remarks at the rally were taken out of context by Democrats and the media.
But Malinowski, during an appearance on CNN Monday, said he felt confident he has enough votes to censure Brooks. He said that he anticipates Republicans supporting his resolution. It is unclear when the resolution could come up for a vote or whether it will be voted ahead of the Inauguration next week, or if it will be held off to a later date.
A censure vote also only requires a simple majority vote from the House of Representatives.
Thomas Shaw, an associate professor of political sciences at the University of South Alabama, said it’s likely to happen considering Wyoming Republican Rep. Liz Cheney’s statements that accountability is needed to address the violence at the Capitol that result in five deaths, including Capitol Police Officer Brian Sicknick who was reportedly struck in the head with a fire extinguisher by rioters.
“It won’t be extensive, but there will be some bipartisan support for this,” said Shaw. “It’s very likely it will happen. It was a watershed moment in U.S. history that the Capitol was attacked in what is described as an act of terrorism.”
Shaw said censorship against Brooks will represent a “stain on his record,” but won’t be “horrible” in that it doesn’t mean the congressman will be expelled from participating in his typical congressional duties.
The resolution requires Brooks to “present himself in the well of the House of Representatives” for the pronouncement of the censure.
“Over his career, he has not had ethical violations,” said Shaw. “But Republicans, being the minority in the House, he would not have chairmanships that could be striped of him. Otherwise, he retains his powers, voting ability and his office.”
Shaw added, “It’s kind of a public shaming. The question is ‘how bad is it?’ Outside the shaming aspects, it doesn’t mean much.”
If the House votes to censure Brooks, it will mark the first time that the same disciplinary procedure allowed in the U.S. Constitution has been used since 2010, when Democratic U.S. Rep. Charles Rangel of New York was censured for his role in financial misdeeds.
Lichtman said Brooks has no other recourse to battle against the censure than in the Democratic-controlled House. The Constitution prescribes that censure resolutions be focused on members of their respective houses.
There have been only eight instances of censure in the Senate, with the most notable occurring in 1954 against Wisconsin Republican Senator Joseph McCarthy who made baseless allegations that numerous Soviet spies and sympathizers infiltrated the federal government, universities and elsewhere.
Members of Congress can also face reprimand, which is viewed as less of a severe punishment but has been more often used since the 1970s. A dozen lawmakers have been reprimanded in the House including former Speaker of the House Newt Gingrich in 1997 for providing false information to the House Oversight Committee. A reprimand does not require the lawmaker to stand before the House and have the resolution read to them.
Expulsion is the most serious punishment against a member of Congress and requires a two-third vote from the majority from the members of the legislative body. Only five members of the House have been expelled, and three of them were related to supporting the Confederate rebellion in 1861.
Four representatives-elect have been expelled before taking office, but the most recent instance was challenged in federal courts. In 1967, longtime New York Rep. Adam Clayton Powell – embroiled in a financial scandal at the time – was denied the oath of office by then-House Speaker John William McCormick. Powell, who won re-election to his congressional seat in 1966, sued McCormick and a host of others arguing that his inability to take the oath of office amount to an exclusion that would require two-thirds vote by the House. The Supreme Court ruled that Powell was wrongfully expelled from his seat.
Allen Linken, an assistant professor of political sciences at the University of Alabama, said Powell’s case illustrates the “finite” considerations of being seated as a member of the House of Representatives – The Constitution requires its members to be at least 25 years of age, a U.S. citizen for seven years and live in the same state they represent.
“It doesn’t matter what the ethical considerations are or the issues you are facing outside the (legislative) body,” said Linken. “You have been seated.”
He said one constitutional issue that could be interesting in the Brooks case is whether Article 1, Section 6 of the Constitution could apply if the congressman faces a criminal charges for inciting a riot. The District of Columbia’s attorney general is contemplating whether to charge Brooks and others with inciting violence at the Capitol.
The Constitution states that in all cases – excluding treason, felony, and breach of peace – a member of Congress is “privileged from arrest during their attendance” at a congressional session on the Capitol floor. But the Constitution also states that privilege is extended to members of Congress “in going to and returning from the same.”
“What a member says generally on the floor of the House is privileged,” said Linken. “Going to and from the scene, I think there is a decent discussion that should be had whether or not Representative Brooks was going to a joint session of Congress (when he spoke during the Trump rally).”
But Linken notes that the Constitutional clause does not apply to the censure resolution.
“An action of the House is not an arrest,” he said. “It’s a consequence of your employer as opposed to a criminal charge.”
The censoring of Brooks, if it occurs, is something that Alabama has never experienced before with one of its members of Congress.
Steve Flowers, a political commentator in Alabama who served with Brooks in the Alabama Legislature in the early 1980s, said the state has had “very erudite senators and congressmen” since the Civil Rights era of the 1960s, highlighted by Senators John Sparkman and Lister Hill who were both “well-respected.” He said there has not been any past actions, in recent history, that would lead to disciplinary action against a member of Congress from Alabama.
“Other Southern states like South Carolina and Mississippi, their senators were considered more racist who would demagogue the race issue (during the Civil Rights era) and our senators would never do that,” said Flowers. “They would vote for segregation because they had to. But no one has been as controversial as Brooks has been. It’s just been in the last decade or more when the Mo Brooks of this world, the reactionary bomb throwers who are really ideologues, have been elected.”
The Brooks censorship also stands out because other controversial moments involving Alabama congressmen did not result in a similar rebuke from colleagues.
The most horrific moment involving a member of the Alabama congressional delegation occurred close to 113 years ago and involved Democratic Rep. Thomas “Cotton” Heflin, who served in the U.S. House from 1904 to 1920. During that time, Heflin – a prohibitionist and racist – saw a Black man sitting on a streetcar in Washington, D.C., sipping whiskey with a white woman, according to a historical account. Heflin, during the confrontation, tossed the man off the streetcar and shot him in the leg. The bullet also struck a white bystander. Heflin was arrested, but the Black man did not show up for the trial and charges were dropped. Heflin paid for a portion of the bystander’s medical bills, and then bragged about the incident as he campaigned for the U.S. Senate. Heflin served in the Senate from 1920-1931.
Other members of Congress have had questionable backgrounds before they were elected. Democratic Senator Hugo Black, before he was elected to the Senate in 1927, resigned as a member of the Ku Klux Klan in 1925.
“The Tom Heflin incident was the most egregious event,” said Wayne Flynt, an Alabama political historian and professor emeritus at Auburn University. “The only others that might have led to censorship is one of those retrospective ways some judge history, applying the standards of one generation to a previous one. By that standard, antebellum Alabama senators owned slaves, and the state’s most liberal senator, Hugo Black, was briefly a member of the KKK during the 1920s, as were almost all ambitious Alabama politicians.”