Members are nervous about opening day disruptions

The opening day of a new Congress has historically been a celebratory occasion as families and constituents of newly elected members cram the House galleries for the swearings-in. Next Jan. 3, however, is fraught as concern rises over possible disruptions. 

The mob attack on the Capitol during the electoral vote count for president on Jan. 6, 2021 still haunts those who were present. Members and support staff were herded into a subterranean room for three hours of sheer terror until reinforcements arrived to relieve the overwhelmed Capitol police. Presumably, precautions are being taken this time to prevent a recurrence of comparable chaos and violence.

Yet, there is an overriding concern that President Trump’s attempts to meddle in and manipulate the midterms could cast doubt on so many elections that the House would be thrown into utter turmoil on Jan. 3.

The president’s efforts to undermine this year’s midterm elections are legion. Last Friday, the Justice Department warned California state election officials they could be exposed to federal criminal liability if they count ballots from voters that the administration has flagged as “potential noncitizens.” Previously, the administration has tried everything from convincing states to redraw their congressional district maps to placing new restrictions on mail-in voting, to deploying federal agents to polling places, and even to seizing voting machines.

Most of the heavy-handed attempts at election manipulation have been thwarted by the states or the courts. Yet the efforts were clear signals that the administration may pull out all the stops if Democrats win control of one of both houses of Congress.

The process in the House for certifying the election of members seems straightforward. On opening day, the House Clerk conducts an electronic quorum call from the names of those members-elect for whom state certifications of election have been received. After that, the Speaker is elected, then members-elect are asked to rise to be sworn-in. If a challenge to the election of any member has been received from that person’s election opponent, by statute that member is asked to stand aside and the contest is then referred to a committee for investigation.

It is also allowed, under the precedents, for any member-elect to challenge the seating of another member-elect. This was done in 2021 when Rep. Chip Roy (R-Texas) demanded that all members-elect from the states of Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin – 67 in all from both parties – not be sworn. House Majority Leader-elect Steny Hoyer (D-Md.) trumped Roy’s demand with a privileged resolution directing the Speaker to swear-in all members-elect. Hoyer’s resolution was adopted, 371-2, with even Roy voting in favor. 

One of the most sensational election disputes on the House floor in the last half century occurred in 1985 over a seat in the “bloody eighth” District of Indiana – the so-called McIntyre-McCloskey race. When Speaker Tip O’Neill (D-Mass.) asked members to rise to be sworn, Majority Leader-elect Jim Wright (D-Texas) rose to object to the swearing-in of Rep.-elect Rick McIntyre (R-Ind.) who had beaten incumbent Rep. Frank McCloskey (D-Ind.). McIntyre had presented the requisite certificate of election from the secretary of state of Indiana. He had won the election by a razor thin margin of 34 votes. 

Wright claimed his challenge was based on “facts and statements that I consider reliable.” O’Neill was forced to direct McIntyre to remain seated. The contest was referred to a three-member task force of two Democrats and one Republican. The inquiry lasted nearly four months until Democrat McCloskey was declared the winner by four votes. Still, the unprecedented episode became a rallying-cry of outrage for Republicans. Among other things, it eventually elevated a backbench bomb-thrower named Newt Gingrich to the speakership ten years later.  

Last week, two House members of opposing parties, Reps. Josh Gottheimer (D-N.J.) and Don Bacon (R-Neb.), began circulating a letter to their colleagues urging them to join in a pledge to recognize the legitimacy of those members-elect whose elections have been certified by their states. The pledge goes on to bind signers of the letter to oppose “any attempt to refuse or delay the seating of any Member-elect.”

It is a valiant effort but will not likely garner a significant number of House signatures. Members are reluctant to commit themselves to future hypotheticals until all the facts are known. Election disputes and their resolution do have legitimacy under the law and precedents. They can, however, become extremely dangerous if used in large numbers as partisan bludgeons to stupefy the House.

Don Wolfensberger is a 28-year congressional staff veteran culminating as chief-of-staff of the House Rules Committee. He is author of “Congress and the People: Deliberative Democracy on Trial” and “Changing Cultures in Congress: From Fair Play to Power Plays.”