No, Nancy Pelosi Should Not Refuse to Seat the Newly Elected Members of Congress Who Are Challenging the Election Results

12 mins read

If you missed it, the news that rocked social media today:

First, the GOP leaders lie and say there was election fraud. Then GOP senators argue that the fact that their supporters believe there was fraud undermines the results of the election.

What’s happening, of course, is this: The GOP leadership doesn’t like fair and free elections because they are a shrinking minority.

January 6th will be a freak show. Biden will become president because the only way to stop it would be for the House to agree and that won’t happen. Going forward, the GOP becomes even more dangerous and radicalized.

A few hopeful points: The GOP could very well lose control of the Senate. Because these GOP senators will force a vote on Wednesday, the GOP may fracture, with moderates forced out. While this radicalizes the party, they lose numbers.

When this question came to me, I understood why “sedition” was trending on Twitter. You know those newly elected representatives who are claiming the election was fraudulent? People think Nancy Pelosi should refuse to seat them tomorrow on the grounds that they are inciting sedition. 

So why shouldn’t Nancy Pelosi refuse to seat the newly elected members of Congress who are challenging election results?

There are a few reasons this shouldn’t happen. First, if Pelosi unilaterally decides not to seat newly elected representatives based on her judgment that they don’t deserve to be seated, wouldn’t she be overthrowing the results of a free and fair election? She’d actually be doing what the Republicans are trying to do.

Second, refusing to seat them because they say the election wasn’t valid gives credence to the lie that the election wasn’t valid. As Michigan State University law professor Brian Kalt pointed out, we can’t have it both ways. The only basis to not seat them would be to say that state-certified results aren’t presumptively valid. In fact, state-certified returns are presumptively valid, which makes Biden the next president and these lying new members of Congress entitled to their seats in the House. 

Third, there is no authority to refuse to seat an elected rep for telling lies, which is what refusing to seat them would amount to. The Democrats can’t say, “You are doing really bad things so we won’t seat you,” even if they are doing really bad things.

Under the Constitution, the states decide who represents them in Congress. The House doesn’t get to decide who is seated. The states send their own reps. Moreover, if you say, “The House gets to refuse to seat a person who tells a lie about the election,” where does that lead? 

Do you really want to empower the Speaker of the House to unilaterally decide who gets their seat in Congress? Do you want to give the Speaker the power to override the decision of the citizens of the states about who they want as their representative? What if the next Speaker of the House is Republican? How will you feel when that Speaker exercises the authority you now want to give Pelosi?

If things continue in this direction, the political divide will no longer be liberal v. conservative. The divide will be pro-democracy v. anti-democracy. This means at least one party has to stand up for rule of law, which means that Pelosi can’t take it on herself (and the Democrats can’t take it on themselves) to decide who gets sworn in. 

The states decide. Period.

What consequences do people want? There are procedures for indicting a person and charging a person with a crime. We don’t decide as a group. Pelosi doesn’t decide. There are things the House can do but refusing to seat newly elected members isn’t one of them.

We have procedures so that decisions are not arbitrary. 

The Fourteenth Amendment, Section 3, does not give the Speaker of the House unilateral power to decide who can be seated in Congress and who cannot. Can you imagine if that were true? 

Section 3 was written after the Civil War, about the Confederates who waged a literal war against the United States. By no stretch does this refer to someone who is lying about an election. That would be a very loose definition of “insurrection.”

What is really happening here is that people want easy solutions. They want someone in power to do something to stop the Republicans from trying to overthrow democracy. Unfortunately, there are no easy solutions.

McConnell is supported by a majority of senators, who in turn, are supported by a majority of voters in their jurisdictions.

McConnell has engaged in what we call hardball tactics. A hardball tactic is something technically allowable under the Constitution but nonetheless consists of a norm-breaking power grab not anticipated by the Constitution.

The party trying to jettison the rule of law has an advantage over the party trying to uphold the rule of law. The party trying to uphold the rule of law must follow the rules. The other is free to disregard laws and norms. Fortunately, a majority of Americans want democracy.

The way to save democracy is not to imitate the party trying to destroy democracy. The way to save democracy is with more democracy.

Besides, why would we want to imitate people we don’t admire?

When we act like Republicans, we prove correct their cynical “both sides” argument that both sides are alike: Both sides break rules. 

Here’s the thing about procedure: You can’t make it up on the fly. Making up procedures as you go is the same as making up laws as you go. And isn’t that what dictators do?

The way Trump governed for four years was to create an endless series of spectacle and drama. Let’s not be like that.

What’s weird about people on the left feeling an uncontrollable urge to play hardball is this: The Democrats are winning. They won the election. They won their court cases. They have the White House, the House, and maybe the Senate. But hey, let’s do something drastic.

Want to know the quickest way to bring down a democracy? Start indicting and jailing elected officials from the opposing party who won their seats in free and fair elections. Imagine if that happened in another country.

The term legal scholars use for “leveraging the high ground to win battles without losing that high ground” is “anti-hardball tactics.” 

Anti-Hardball Reform: How to Both Win and Take the High Road

This is a great lecture if you’re bored and need to watch something exciting (kidding, only exciting for nerds!):

Harvard professor Steven Levitsky concludes that while we aren’t sliding into autocracy (because our institutions are holding out), we are sliding into dysfunction.

The danger of dysfunction is that people will lose faith in the government, which will further weaken our systems. For example, a senator told Levitsky we may come to a time when the only way to get judges appointed will be if one party controls the Senate and White House. 

The greatest danger to democracy is what Levitsky calls escalation, or responding with more hardball. “Escalation,” says Levitsky, “rarely ends well.” 

The Dems have better medium- and long-term prospects than the Republicans because the GOP represents a shrinking minority. It’s not shrinking as fast as we’d like but the GOP is having trouble winning nationwide elections, having won the popular vote only once since 1988 (in 2004). So it’s in the interests of Democrats to preserve democratic institutions.

Democrats must therefore be careful not to escalate matters. Escalating matters will put more stress on democratic institutions. Levitsky uses an earthquake analogy. The Republicans are shaking the buildings. We don’t respond by putting more pressure on the structures. Instead, we try to reinforce them.

This doesn’t mean Democrats should be passive, or acquiescent, or abandon vigorous opposition. But instead of destructive hardball tactics, Levitsky recommends that Democrats use what Columbia Law professor David Pozen calls anti-hardball reform.

Anti-hardball reform means responding in ways that blunt GOP anti-rule-of-law power grabs without putting additional pressure and stress on the democratic institutions. For more on anti-hardball tactics, see Pozer‘s paper.

To take an example: Suppose the GOP passes restrictive voter ID laws. Such a law will fall more heavily on lower-income communities, making it harder to vote. Hardball response: Take away the right to pass such laws. This, though, weakens legislatures.

Anti-hardball response: Organize a massive drive to get everyone the correct ID. This way, we elect pro-democracy representatives who can then further strengthen our institutions from within. It’s hard work. But then, democracy is hard work. 

Levitsky says we’re in a political earthquake, undergoing a transition from a white, Christian (male)–dominated America—which was decidedly undemocratic for women and minority communities—to a true liberal democracy.

Ethnic majorities rarely give up their power without a struggle. Levitsky quotes these statistics:

As the GOP watches its long-term prospects diminish, it is becoming increasingly desperate and sees possible defeat as catastrophic.

And that is where we are now.

Photo by Brendan Smialowski / AFP

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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