We do a disservice to Democrats by demanding Pelosi deny seats to 126 GOP Members

[StarfishSaver]

The call for Speaker Pelosi to refuse to seat the 126 Members who signed the Supreme Court amicus brief - triggered by a tweet from Rep. Bill Pascrell - sounds good, but it's a non-starter. Neither the Speaker nor the House have the Constitutional or statutory authority to take such an action.

First, a Member can be denied their seat ONLY if he or she fails to meet the Constitutional qualifications (age, citizenship, residency, etc.) or if the result of their election is contested or uncertified. Neither of those conditions apply to any of those Members and, therefore, they are entitled to be sworn in.

Second, the argument being used here and elsewhere that the 14th Amendment prohibits anyone who engaged in "rebellion or insurrection" from serving in Congress does not apply. That clause was intended to apply to former Confederates who participated in a war intended to overthrow the government and is inoperable here. Signing an amicus brief asking the Supreme Court to settle a legal dispute is not an act of war, violence, sedition, insurrection or rebellion. It is, in fact, how we expect people to address their objections - they had every right to petition the Court, notwithstanding the outrageousness of their position. The fact that their request was an outrageous one does not turn their use of the judicial process into a federal crime. No court would rule otherwise and no lawyer with even rudimentary knowledge of the Constitution or statute would argue that they should.

Note that several members of the Congressional Black Caucus sought to have the Florida Electoral College results thrown out in 2001. Other than the fact that they sought to do this in a joint session of Congress instead of in court, that was no different than this situation - their attempts to use a legal process to achieve their goal was not seditious and certainly didn't render them in violation of the Constitution or subject to being denied their Congressional seats.

Third, even if these 126 Members' actions could be deemed to be a criminal rebellion, insurrection or sedition within the meaning of the Constitution or statute, it is not within the power of the Speaker or the House to unilaterally make that determination.

Some people have cited Section 3 of the 14th Amendment as justification for their call to exclude these Members, yet seem to have skipped over Section 1 of that same amendment, which guarantees due process and equal protection and, thus prohibits the House from denying them their seats based on an extra-judicial allegation that they violated the Constitution.

In order for the House to invoke this clause of the Constitution against a Member, a court would first have to have convicted that Member of the specific crime on which the refusal to seat is based.

Moreover, it is somewhat ironic to see Democrats insist that Members who argued that voters should have their vote disregarded and their chosen candidate denied the office they selected him for should be punished by having the votes of THEIR voters disregarded and their chosen candidate denied the office they selected them for.

Unfortunately, social media (including DU) is being flooded with people who don't know the law but are demanding that the Speaker and the House do what they are not legally empowered to do. And, of course, many of those demands are couched in criticisms and accusations that speaker Pelosi and the Democrats are weak, cowards, ineffective, etc. if they do not do it. And since they will not do it because they cannot do it, we will continue to be inundated with unfair and baseless attacks on Democratic leadership.

Instead of focusing on trying to force an action that has no basis in law, I urge people to consider what type of action they can advocate that can actually be taken to punish these irresponsible Members and deter others considering similar action in the future from following their lead.

[FreepFryer]

1. Thank you! (As always). Much respect and be well. (Nt)

[TheBlackAdder]

22. Really. If this were dooable, the Republicans would have exercised it many times before.

[PatSeg]

26. Yes, in a heartbeat

We have to be careful what we do to republicans, as they will use it against Democrats 100 fold down the road. They don't care about governing and legislating, they are all about tactics and warfare. AND they don't need a reason.

[DownriverDem]

46. So

at the end of your analysis you said the Dems should do what they can. What exactly does that mean?

[Cicada]

2. We favor democracy so we should not try to defeat it

Even if they tried to defeat it. Two democracy wrongs don’t make a democracy right.

[still_one]

3. Pelosi isn't going to exercise that, but what concerns me is rethugs trying to deny presidency to

Biden/Harris on the floor of the House

https://www.rawstory.com/2020/12/republicans-plotting-to-deny-presidency-to-biden-on-floor-of-the-house-if-trump-gives-the-word-report/

[brooklynite]

14. Why does it concern you?

On what basis will their whining on the floor of the House have any impact?

You need a majority of the House and Senate to block the certification, and there won't even be a Senate Majority.

[still_one]

20. Because of the propaganda effect it will have, not that the action will be effective

This is all a production of free propaganda for them

[exboyfil]

4. Right - Calling for it and not doing it

makes us look weak and attempting to do something that is unconstitutional.

Should be focusing on using it as a political hammer. Cite the ridiculous statistical analysis that came with the filing. Pick apart the Representatives. Make them defend their decision for the next two years. Put pressure of newspapers and other organizations that endorsed these candidates to retract their endorsements.

Also filing frivolous lawsuits is not sedition. Some of the things being said is sedition. Approaching legislators, state SoSs, and Governors can be sedition or violate other laws depending upon what is requested/threatened. We should focus on how unprecedented these approaches have been, and how it is on these figures to take this call as well.

[StarfishSaver]

7. Exactly!

[mia]

5. Well said.

Thank you.

[MyNameGoesHere]

6. Context of this seems almost identical

To a post I can't find anymore. Is DU duplicating posts?

[StarfishSaver]

8. My earlier post was hidden

So I revised and reposted.

[The Velveteen Ocelot]

9. Thank you for your solid analysis and your common sense.

It is appropriate and completely fair to call out and embarrass those idiots (repeatedly, if necessary), but they got their legal smackdown from the Supreme Court and they’ll have to live with having beclowned themselves. The remedy is not to cross the line defining what the law allows (which is what they asked the court to do), but to use the vote they would have denied millions to get rid of them.

[Firestorm49]

10. Thanks.

[dware]

11. Thank you for this.

[Hotler]

12. Instead of criticizing us why don't you throw down some solutions.

All I hear is how we are all wrong for wanting to see some serious fight from our party.

[StarfishSaver]

13. Why do you think this is criticism of you?

It's information. Feel free to take it or leave it.

[Hotler]

16. Not me. Us equals DU. nt.

I tried to put an equal sign in but it wouldn't take.

[StarfishSaver]

17. If all you got from my OP is a false impression that it's a criticism

that's on you.

[dware]

15. There isn't alot the House can do,

they can try to expel them, but that requires a 2/3rds vote, which isn't happening.
The House can censure them, that only requires a simple majority and is well within the Constitution.

Other than that.................

[Tarc]

28. There is no solution, other than "vote them out in 2022"

We do not engage in Kraken-like subversion of democratic institutons, like they do.

[yardwork]

32. The OP isn't about DU.

[tavernier]

95. They should definitely be censured.

And sharp tacks put on their chairs. (Or something that causes some pain when they all laugh at the censures.)

[panader0]

18. Excellent post. Very informative and sensible.

[SCantiGOP]

19. Agree 100%

How can anyone in DU advocate a move to deny seats to 1/4 of the duly elected House members?
That would be a trump tactic, not something for a democrat, either of the small D or the capital D variety.

[LovingA2andMI]

21. And this is how Republicans will win the House in 2022.....

By Democrats Monday Morning Quarterbacking everything. So typical.

[newdayneeded]

27. Yep

Let's just sit back and let the right attempt a coup. Let's try not to upset them, or remotely punish them. Scorpion, frog, river; you know the story.

[calimary]

48. Welcome to DU, newdayneeded!

Cool screen name, btw!

I'm leaning the way you are. I think we need to make noise about this. Show our disapproval of what the GOP is doing, and let Pelosi know there NEEDS TO BE A RESPONSE.

What I think we CANNOT afford to do is say - "oh, okay, it's alright. No harm no foul."

No foul? Or no "FOWL"? To me that says oh, "we should just let it go, let bygones be bygones," and frankly, I CANNOT DO THAT.

This needs some sort of censure, or pushback, or cost of some kind. And NO, NOT the cost of "we'll just vote 'em out in 2022." THAT is no guaranteed remedy, either!

Just saying - "oh, let's just let it go, let bygones be bygones..." means we're basically sanctioning this kind of disruptive and seditious behavior and promising that nothing corrective, no corrective or punitive response, will happen. So anybody's just free to indulge in this kind of destructive behavior again, any ol' time.

And I'm sorry, guys. I can't go there.

There HAS TO BE some penalty imposed, for this. Some black mark on their record. And by their names. Like the proverbial scarlet letter. Otherwise, we're basically saying - "meh, it's okay."

AND IT'S NOT OKAY!!!! IT WON'T EVER BE OKAY!!!

[newdayneeded]

53. Thanks for the welcome!

Now that the highest branch in America (1 of 3) has ruled, or in this case, threw it out. Pelosi now needs to take an immediate resolution vote on whether each house member agrees or disagrees that Joe Biden is President Elect. At least get them on record, right now. Every congressional commercial will have their opponents no vote plastered on the TV screen for all to see.

[calimary]

60. Now THERE'S an idea!

I just updated my "ask" in this new week's Call to Action email script - to include this.

Make 'em wear it like the proverbial scarlet letter!

[wnylib]

70. I did not see anything in the OP that

advocated for letting the right attempt a coup. Don't see how anyone can interpret it that way.

What I read in the OP was a factual explanation of law that shows why we can't legally refuse to seat duly elected representatives. Following the law is not weakness. It is upholding democracy. It is not illegal to file cases in court, or to support court cases. The case might be foolish and irritating, but it is not illegal. However, it would be illegal to refuse to seat them because they spoke in support of a legal court filing.

There are other things we can and should do. Some have already been mentioned in this thread. We can call them out and publicly humiliate them. We can assure that the democracy that they tried to destroy remains a democracy by adhering to the principles of democracy in preserving their right to be seated as duly elected representatives. And then we can rub their noses in the example we have set in being better than them.

As for the people like Lindsey Graham, who tried to pressure Georgia to violate the law and overthrow their election, that IS illegal, AFAIK, so we can call for him to be investigated and charged.

One other thing we can do is stop whining that Dems are weak and ineffective. I read many posts to that effect during the impeachment proceedings because Trump's enablers ignored subpoenas. And yet, look what we accomplished with that impeachment. We stopped Trump in his tracks from using false slurs against Biden because the impeachment proceedings exposed the slurs as untrue. This enabled Biden to become our candidate and then our next president, unseating the vile scum in the White House. Trump appeared to win battles when nobody would testify and when the Senate would not hold a trial or convict him. But in the end, we won the war and are now kicking Trump's ass out.

That's not weakness. That is strength that comes from hard work, perseverance, and keeping the faith.

[scarletwoman]

73. Very well said, thank you!

[StarfishSaver]

75. Thank you!

[wnylib]

79. And thank you for providing factual

legal information that many of us (including me) did not know before.

[Polybius]

57. Republican's would win 300 seats if we refused to sit them for merely filing a lawsuit

It looks horrible to the average Joe, and might even spark mass unrest.

[StarfishSaver]

62. They didn't even file a lawsuit... They just submitted an amicus brief

[GeorgeGist]

23. What action are you advocating?

[zentrum]

24. Thank you.

[Freddie]

25. Thank you for clarifying

What they did SHOULD be worthy of expulsion, but it wasn’t.
What exactly does censure do? Is there anything Ms. Pelosi can do to “punish” or embarrass them?

[seta1950]

29. These people are trying

To overthrow the government, by overturning a legitimate election, people seem more concerned about his supporters than the majority who fired the crook in the WH

[LAS14]

30. Excellent post. Makes me proud to be a member of the clear thinking party!!! nt

[bucolic_frolic]

31. The Constitution is not as rigid and inflexible as it is presented here

It is subject to interpretation, and how far lawyers and Congress members can push it to find loopholes and new interpretations. That's why we have courts and judges - it's not a cookie-cutter 1+1=2. It happens every year, several times a year.

I'm not saying this to support unseating 126 Republicans. Rep. Pascrell sent a warning, it's a political broadside to balance the attempt to unseat a President-Elect. More appropriate, and proportional remedies are available - censures, legal referrals to DOJ, ethics investigations.

But if you think unseating can't happen - just wait until the GOP does it to our side!

[StarfishSaver]

33. "New loopholes and interpretations"

Yeah - that's what the GOP has been trying to get the courts to do.

But seriously, no court is going to fins any loophole on the Constitution that allows the Speaker to block Members of Congress from being sworn in under these circumstances.

[stopbush]

34. How could the House even establish which party was in the majority

before the entire House was seated? How could Pelosi be considered to be Speaker before the House was seated, allowing her to exclude R members?

[Cozmo]

35. Nancy's gonna do what Nancy's gotta do. She doesn't need any protection, she's a pro!

[wryter2000]

36. Sanity prevails

Instead, I think it would be great to ridicule them in some way. Maybe flash them the L sign on foreheads to say "Loser."

Too juvenile, maybe.

[StarfishSaver]

37. Lol!

[papa3times]

38. Well thought out well reasoned argument

of the facts. Thanks for the post and setting the record straight. Pelosi knows what she can do both legally and politically and trying to unseat these seditious Republicans is a non starter in both cases.

[Roisin Ni Fiachra]

39. Rep. Pascrell has done us a great service by keeping their "seditious abuse of the judiciary"

in the news. Of course Speaker Pelosi isn't going to deny seating them, it's not possible.

Keeping this in the news hurts the dirty rotten 126 traitors, and the Republicans. Democrats, no, not so much.

Democrats look weak, cowardly, ineffective, etc when they give a rat's ass about what Republicans say about them. Republicans are fascist scumbags, and at this point, nobody, except other fascists, cares about what they say.

We should not seat these corrupt anti-democratic scoundrels! Get out the torches and pitchforks!

[StarfishSaver]

41. I disagree

And your post illustrates my point.

[CaptainTruth]

40. Thank you. Clear & logical, as always.

[BobTheSubgenius]

42. That is very cogent and wise.

The call to not seat them seemed moot to me, however satisfying it might have been. I didn't know the law, so I didn't say anything except some variation of "Would be nice."

[PoindexterOglethorpe]

43. This is perhaps the best and most thoughtful post I've ever read here.

I especially appreciate:

Unfortunately, social media (including DU) is being flooded with people who don't know the law but are demanding that the Speaker and the House do what they are not legally empowered to do.

Thank you.

[Bobstandard]

44. Politics is theatre. Democrats wringing their hands isn't engaging

A well reasoned as StarfishSaver’s argument is, it is outweighed by that of those who want to use the device of questioning the Seditionist 126’s right to seats in the House to highlight their perfidy and anti-democracy maneuvering. Republicans use every trick in the book to screw Democrats and democracy itself. Meanwhile, Democrats engage in ceaseless hand wringing about what is proper and within the rule of law, missing out on making important points all the while.

Nobody believes that we can really keep the 126 from their seats—though we can all see they don’t deserve them. Everybody knows that Republicans, in our place, would try that very thing against us. So lets at least not deep six the very idea. Let’s make a lot of noise instead,, drawing attention to use how rotten the 126 really are. And lets remind everyone about it every chance we get. Those are actions that will actually punish these seditionist Members and deter others.

Finally, should Democrtic leadership fail to engage in these kinds of punishments, then attacks on their strength and effectiveness will not be unfair or baseless.

[Roisin Ni Fiachra]

45. Yes. Writing stern letters of disapproval to Mitch McConnell about Republican

corruption never works for me.

I just can't understand why he won't listen.

[StarfishSaver]

49. Why do you assume that the Democrats don't engage in a futile act, they're likely to do nothing?

[stopdiggin]

67. making noise, even if it's ignorant and inept?

"Republicans use every trick in the book to screw Democrats and democracy itself."

And your response to this is that Democrats should stand ready to screw democracy as well? Because -- theatre! And I suppose next we could have a little Proud Boy action in the streets? Thanks -- but, no!
---- -- -- ----

[Bobstandard]

99. No noise makes us dupes

Bullshit works for Republicans. Noise espousing righteous indignation and valid political criticisms can work for us. But if we think that’s impolite and so don’t do it, who wins?

[cp]

50. Very sensible

Thank you.

[bucolic_frolic]

51. Headline you'll never see

Trump does a disservice to Republicans by demanding Biden be unseated from President-Elect

And as long as we keep rolling over like a carpet we'll be treated like one.

Grow a spine!

[StarfishSaver]

54. I don't base my legal analysis on how Trump and the Republicans are characterized by the media

[grantcart]

52. Desperation drives people to nonsensical Hail Marys

Packing the court is another one.

Thanks for a sensible discussion of the subject, unfortunately the crazy train will be back on schedule.

[Turin_C3PO]

58. Of course

packing the courts are completely legal and should be seriously looked at, if we have the votes (which we won't). Otherwise women and LGBTQ will be forever doomed as second class citizens. But as for people suggesting we can refuse to seat 126 GOP senators, that's ridiculous and not legal.

[grantcart]

61. So if we have the votes we should pack the courts because it is legal and ethical

So you would have no legal or ethical objection for the Republicans doing the same.


There are no shortcuts, if you want to have political power you have to win elections.

[Turin_C3PO]

69. The courts have been expanded before.

I'm completely in favor of expanding them again, including lower federal courts. As long as it's legal I'm for fighting fire with fire. If the Republicans do it, we can expand again. It would at least keep the court balanced.

[kcr]

76. No, packing the courts is not another one.

That one is actually legal and feasible.

[MFM008]

55. She may have to seat them

But she does not have to allow them to speak on the floor any time soon.

[Bettie]

56. Ultimately, it doesn't really matter what any of us think

because no one in power truly gives a single fuck what we think.

Unless you're a billionaire.

So, us down here on the bottom (most everyone), we can honestly say anything we want to, because it won't change a thing.

FWIW I don't think refusing to seat them is possible, since they were elected by their states. But, I am not a billionaire, so my opinion means exactly nothing to anyone with power.

[Turin_C3PO]

59. That's the truth about elected Republicans.

Democrats in power absolutely do care about the people. To suggest otherwise is "both-siderism" at its worst. Not saying you're saying that but people could misconstrue your post.

[Bettie]

63. In a general sense, Democrats care about our lives

and work toward improving them.

People posting on DU? We can literally say nearly anything and it won't move the opinions of the "big cats" at all. We're generally nobodies.

[stopdiggin]

74. disagree

1) Calling me a nobody (while mostly accurate) is still -- hurtful and demeaning. And my cat and I demand a retraction!

2) And (IMO), politicians do listen to people, and public opinion. Constantly. And when it comes to significant numbers of people -- they can be very attentive indeed. The fact that the "powers that be" are quite successful in manipulating us into advocating and voting for what they want (rather than in our own interests) -- can be laid at the step of divided and uninformed public. i.e. -- kinda' our fault.

If you're a small business owner that's voting against child care, health care and student loan relief -- because, "taxes" - "socialism" - "immigration" -- that's on you! I guess others are happy to point to Reagan, and Murdoch, and Limbaugh -- but I kinda' happen to think it's because you're an ignorant prick!

[Bettie]

89. Well maybe you are "somebody"

I'm not. No one I know is. I am not "someone" enough for any human being who isn't my husband or kids to care about. I'm not famous, not wealthy. I am, in a word, ordinary.

The way things are structured in our system currently...money talks way louder than human voices.

So, while we can and should call offices and tell them what we like, in terms of legislation, posting on DU that we'd like Nancy Pelosi not to seat the particular right wing assholes mentioned in the OP isn't going to make any difference at all, because in such issues, our opinions don't matter.

In terms of legislation, we can say "Yes I like this" or "No I don't" and a staffer will put a tick mark in that column to track it. So, it matters on a macro level (enough people saying "yes" or "no" will make a difference on support or non-support of legislation), but individually, on stuff not related to specific legislation? Not much, if at all.

I don't vote against child care, health care, or student loan relief. Not sure where you were going with that.

Sorry I suggested you are ordinary. Maybe I am the only person who doesn't matter.

[plimsoll]

64. Probably true legally, but the GOP candidate for Governor here wants to recount as well.

He lost by 500,000 votes, that's an 1/8 of all ballots cast. This entire confection of BS is about insuring minority rule regardless of our laws. So the statement that they are aiding and abetting in the over throw of the legitimate government is not inaccurate or without basis. However I don't think it could be proved, and as others have said earlier if this would work the GOP would have done it before.

We don't need to become as anti-democratic as the GOP appears to have, but it's past time to say that their patriotism is based on racial, religious and ideological exclusion. Their definition of US bears more in common with the KKK, or Nazi Germany. The Americans who sided with the British were more patriotic than these felons err fellows.

Donald Trump, less democratic than Stalin.

[LPBBEAR]

65. I would suggest

the poster go watch the excellent PBS Rise Of The Nazi's documentary. These people are dangerous and heading exactly the same direction as Hitler and his Brown Shirts.

[StarfishSaver]

66. What does that have to do with whether Pelosi has the constitutional authority deny them seats?

[BGBD]

68. They did more than that

They have questioned the legitimacy of the entire election process. They have succeeded in causing a lot of people to believe in incoming admin is illegitimate. It is unsustainable for our democracy to have this. They must pay a price for it.

They can all be denied seats on committees.

[StarfishSaver]

71. Questioning the legitimacy of the election process isn't sedition and it isn't a crime

And the Democratic Speaker has no power to deny committee seats to Republican Members. Republican committee seats are assigned by the Republican leadership.

[BGBD]

82. Don't be so sure.

She still have the Rules Committee on her side and Republicans don't have much of a voice there. The rules can be amended to deny assignments to anyone who signed that brief. There's no constitutional requirements for committee assignments.

[StarfishSaver]

83. I'm quite sure

It doesn't work that way.

[BGBD]

84. It does

Allowing minority parties say in their members assignments is a rule and rules can be changed by the majority. There is little that the Rules Committee can't do so long as it has votes in the chamber to back it up, and it does.

[StarfishSaver]

85. Some House rules cannot be changed by simple majority

[BGBD]

86. Rules for each new congress

are established through a resolution and a majority vote.

Our house, our rules.

[StarfishSaver]

88. Whatever

[ooky]

72. Just give them seats in their own special Caucus called the Anti-Democracy Caucus or

Fascists Caucus.

[stopdiggin]

77. Big thanks! 100% We need stop calling for

stupid sh*t -- and then castigating everybody that knows better as "not willing to fight."

The idea that members of congress should not be seated over this folly -- or that any serious consideration ought to be given thereof -- is errant nonsense.

And defending the idea on the basis demonstrating moxie or backbone illustrates an essential lack of serious intent.

[scarletwoman]

78. Many thanks for your well-reasoned, and articulate post. It's much appreciated.

It's no fun to be denied one's druthers, but better to face the truth of a situation - and strategize from there - than flail around blindly where there's no hope of success.

[Budi]

80. ➡️ "it is not within the power of the Speaker or the House to unilaterally make that determination"

Third, even if these 126 Members' actions could be deemed to be a criminal rebellion, insurrection or sedition within the meaning of the Constitution or statute, it is not within the power of the Speaker or the House to unilaterally make that determination.

[Hermit-The-Prog]

81. The Republican party became the party of extremists by demands for ideological purity.

We have to guard against the same happening to us. The howling for strength and backbone, while ignoring the real strength shown daily, can lead to more and more extreme candidates, just as it did with Republicans.

[Hekate]

87. Kick!

[Hortensis]

90. Thanks, Starfishsaver. Much appreciated. Nt

[Meowmee]

91. Imo there should be other reasons why someone should not be seated

[onenote]

93. All it would take is a constitutional amendment.

So you can forget about it.

[Meowmee]

97. Yes I know that

But no I will not forget about it or stop stating as such. This system is deeply flawed and the first step to any possible change is to talk about that. The idea that many still have that this is the best system of gov is false, it has been a deeply flawed structure from the start, and the lack of will to try to do anything about it will be the downfall of the whole system as we are seeing right now.

[panader0]

92. Kick--everyone should read this.

[Pacifist Patriot]

94. Thank you

[scipan]

96. Excellent post. K&R.

We should work on showing those people who voted for Biden and the 30% of Trump voters who don't believe the election was stolen that this is an attempted coup, so far by legal means. But I'm afraid that what comes next won't be legal at all.

[NurseJackie]

98. People need to ask themselves WWND more often.