Dem
53
Ties
3
GOP
44
Back on September 13, we had this question and answer in that weekend's Q&A:
D.P. in Oakland, CA, asks: What is the mechanism by which Speaker Mike Johnson (R-LA) could refuse to seat Democrats next January? Would it be solely his decision, or would it require a vote by the outgoing Congress?
(Z) answers: I cannot emphasize this strongly enough: This is a non-viable maneuver.
To start with, once a Congressional term ends, there are no duly serving members of the House, and the decisions of the outgoing Congress are not binding on the incoming Congress. The first thing that happens, at the start of a new term, is that the House elects a Speaker. The second thing that happens is that the Secretary of the House swears in the Speaker. And the third thing that happens is that the Speaker swears in the other 434 House members (and the three delegates) en masse. It is not likely that the Republicans will hold the majority in January, or that Johnson will be re-elected as Speaker. So, he's not likely to be in a position to try to pull this stunt. And even if he somehow is in that position, there is no way to swear in only the Republicans, since again, the ceremony is a group event.
The stunt won't work in the Senate, either. In the case of the upper chamber, if there's no swearing-in ceremony, then there would be roughly 65 duly-serving members of the Senate. But since there are 22 Republican seats up, as compared to 13 Democratic seats, that would mean a Democratic majority. And the Democrats would promptly elect a majority leader, and that leader would seat the 35 un-sworn-in senators.
On top of this, if Republicans engage in shenanigans to keep Democrats from being seated, then the Constitution would be in abeyance. Every single thing the pseudo-Congress tried to do would result in lawsuits, arguing (entirely correctly) that action [X] is not legal because the duly-elected Congress did not approve it.
It's actually the dean of the House that swears the new Speaker in, by tradition. Our error, but that's a minor issue.
That response prompted something like a hundred readers to send us this piece by (former?) conservative and former federal judge J. Michael Luttig, headlined "The Final Battle for America's Democracy." It is ostensibly a warning about a potential scam that Speaker Mike Johnson (R-LA) could allegedly pull, so as to keep the Republicans in power in the House even if the elections go against them.
The basics of the scam are as follows. First, before his term as speaker and as a duly elected member of the House expires, Mike Johnson fires the current (well-respected) Clerk of the House, Kevin F. McCumber, and replaces him with an obeisant lackey. For purposes of this piece, we will imagine that the lackey is named S. Lee Syball, or SLS for short. Then, once the members-elect show up in January, SLS refuses to enter the names of the Democrats onto the Clerk's roll of House members. And so, the only "official" members of the House are Republicans. Boom! A coup in one easy step.
Luttig, to be blunt, should be ashamed of himself for writing this crap. And The New Republic should be ashamed for platforming it. We will go into detail as to why they should be ashamed later in this item. For now, let us just say that this kind of election-process porn, which plays on the very real Trump-inspired fears that Americans have about their democracy, is nothing new. Remember all the pieces, like this one, about how a half-dozen states could conspire to steal the 2024 presidential election? Or all the pieces, like this one, about what would happen if Trump refused to leave office in 2021?
Even Luttig's specific contribution to the election-process porn genre isn't new. Not remotely. There have been at least a dozen other think pieces talking about the exact same scam over the last year or so, most of them published by fairly big outlets. Here are a few examples:
The New York Times is a particularly enthusiastic purveyor of election-process porn, so it's no shock they've run this same basic piece twice (or arguably three times, since David French, author of the first of the two NYT pieces listed above, doubled down in a follow-up). Meanwhile, note the last entry on the list. Not only is Luttig's "warning" not new, this isn't even the first time The New Republic has flogged this particular theory. And the damn thing is that the last time they indulged, they actually had to add a correction to the piece that reads thusly:
Editor's note: After this piece was published, several readers noted that congressional Republicans would not be able to use Article 1, Section 5 of the Constitution to subvert the midterm election results in a scenario where Democrats win the majority in the House.
Since they ran that piece in December of last year, the editors of the publication seem to have forgotten that this is nonsense.
The most famous "stealing Congress" piece, at least before Luttig's came along, was also in December of last year. It was written by David A. Graham for The Atlantic, and was headlined "Donald Trump's Plan to Subvert the Midterms Is Already Under Way." It makes a number of very basic errors about U.S. civics, including two real whoppers.
The first really big whopper of an error (and Luttig also makes this error) is failing to understand that, as we write in the answer above, the House (unlike the Senate) is not a continuing body. From the moment that one session expires, to the moment that the next group of members-elect are sworn in, there is no House of Representatives. There are no members. There are no rules. Technically, there is no Clerk, or Secretary or any other functionary. The current House cannot make decisions for future Houses. As a practical matter, so that the new House can get sworn in, they all tacitly agree to honor the customs about who gets sworn in first, and how, etc. And they all tacitly agree that there's no need to fire and re-hire all of the people who perform magisterial tasks (like the Clerk). But these are all just "understandings that everyone agrees to abide by" and not "the law."
The second big whopper of an error that Graham makes (though Luttig does not) is that he suggests that questions of who can be seated in the House or not are non-justiciable. In other words, if Democrats are not seated, they cannot go to the courts, because the courts have no power to tell Congress how to conduct its business. He, and other election-porn writers, base this conclusion primarily on the famous 1969 case Powell v. McCormack, in which the Supreme Court told Congress they cannot refuse to seat a member for reasons other than failure to meet the minimal constitutional requirements (in other words, Adam Clayton Powell lived in New York, had been a U.S. citizen for 7 or more years, and was above the age of 25, so he had to be seated, and the fact that he was a crook was irrelevant).
The remarkable thing about using Powell v. McCormack as evidence that the courts cannot tell Congress how to conduct its business is... that case is an example of the courts telling Congress how to conduct its business. Of course questions of who can and cannot be seated are justiciable. (And don't forget that in this "steal the House" scenario, the House would not be duly seated, so the courts wouldn't even be telling the House how to conduct its business, the courts would be telling a bunch of people who will presumably be part of a future session of the House how to conduct their business.)
Luttig, who is a lawyer while we are not, agrees entirely with us that such questions are justiciable. However, he adds a "twist" that French did not. Luttig supposes that, if the courts are asked to intervene, the courts could take months to come up with an answer, during which time Congress twists in the wind. He also adds this: What if the courts eventually weigh in, and say the Democrats have to be added to the roll of members, and "the clerk refuses to obey the court's order to list the Democratic representatives-elect." Then what?
Thus far, we have provided an overview of this sub-genre of election-process porn, the details of Luttig's take on the "potential" scheme, and an overview of some of the barriers that exist. With that intro out of the way, let's do ten reasons this is utter nonsense. We could easily go much more than ten, but we'll keep the list somewhat lean so we don't overtax readers:
These are all big problems. And even if you disagree with us about one or two of them... well, we listed ten. There are too many flaws in the plan to wave them all away.
And now, let us talk about why Luttig, The New Republic, and all the others should be ashamed of themselves. First, even if these schemes were to be real, and even if Johnson were to try it... there's nothing the average person can do to help stop it. The anxiety that such pieces generate serves no useful purpose. It just makes people anxious. It's like that old "Duck and Cover" film they showed to students in the 1950s and 1960s. If a nuke hits your town, your a** is grass, and climbing under your desk or covering yourself with a newspaper isn't going to do a damn thing. All the film did was make kids anxious.
Second, when you talk about grand, really evil conspiracies, you serve to desensitize people to things that are less bad, but far more realistic. Sticking with the nukes for a moment, if the U.S.S.R. were to drop a conventional bomb on, say, Seattle, that would be bad. But in comparison to a nuke, it might seem "restrained." So it might not generate the response it really should. Similarly, next to "the Republicans steal the House from the Democrats," "Republicans shut down a bunch of polling places in Texas" maybe doesn't seem as worthy of getting upset about. But shutting down the polling places IS bad, and it's actually happening, whereas the ridiculous "steal the House" scheme is not.
Third, pieces like this cause people to give up hope. If there really are such machinations going on, what can the average person do? Not much, as we just wrote. So maybe it's not worth it to do anything at all.
We are not sure why Luttig wrote this piece. It is possible that he really and truly thinks he's doing a service by sounding the alarm. He's not—again, this same piece has already been written many times, and it's nonsensical every time—but maybe he at least thinks he is. That said, there's also a somewhat less flattering possibility. Luttig has become something of a rock star on the left, thanks to his outspoken opposition to Trump and the 1/6 coup. People who suddenly get a little fame and a little celebrity sometimes find they like it, and want to stay in the spotlight. This is what happened, at least in part, with Anthony Fauci. Good guy, but his diary makes clear that he began to really enjoy and desire the attention. Could be the same thing with Luttig.
In any event, we absolutely understand why people are anxious, and why pieces like this exist. But it remains the case—and we have written this many, many times—that it is orders of magnitude easier to steal an election before the votes are cast rather than after. This is particularly true with the parade of incompetents that is the current leadership of the GOP. So, if you are nervous about the elections, and you want to do something productive, rather than invest your psychic energy in worrying about silly hypotheticals, consider the following:
And with that, we shall climb off our soapbox... for now. (Z)