Failing Hawley, again
Senator Josh Hawley continues to defend his indefensible behavior of 10 days ago. The indented part below is an oped published by Senator Hawley in the Southeast Missourian Thursday. Responses are my own.
Last week I objected during the Joint Session count of electoral votes in order to have a debate on the issue of election integrity.
This is the key point, and right out of the gate, he is confessing his error. Senator Hawley is free to ask for a debate on the issue of election integrity. He is free to stand on the floor of the Senate and give a speech about election integrity. But the question about his behavior was whether it was appropriate or even legal to object to the counting of the electoral votes in order to have a debate about election integrity. The clear answer — legally — was that it was not.
My objection proceeded according to the letter of the statute, which specifically permits for objections and debate, and followed the traditions of Congress.
Yes, it permits for “objections and debate,” but they must be related to a question that Congress might appropriately consider. Given the law that governs the counting of the electoral votes — the Electoral Count Act of 1887—there was no basis for any objection.
The ECA promises the states that IF they (1) select electors through an election, and (2) have a procedure for contesting that election, and (3) conclude any contest at least 6 days before the electoral college votes, and (4) send just a single slate of electoral votes to Congress, certified by the Governor, THEN Congress will count the votes, so long as they were “regularly given.”
There is no doubt that Arizona and Pennsylvania both satisfied (1), (2), (3) and (4). There is no doubt the votes of the electors were “regularly given.” There was therefore no basis for objecting.
In fact, dozens of Democratic members of Congress have lodged objections in precisely the same forum over the last three decades. To be specific, Democrats objected after the elections of 2000, 2004, and 2016–in other words, every time a Republican has won the White House in the last thirty years.
This is very misleading. In 2000 and 2016, Representatives objected but could not get any Senator to join the objection, so there was no debate and no delay in the certification. In 2004, one Senator did join in an objection, so there was two hours of debate.
In all three cases, however, there was (1) strong evidence of voter suppression—a federal constitutional violation—and in 2016, there was (2) a strong claim that many of the electors were constitutionally ineligible to serve as electors.
Re (1): My own view is that even if there was a constitutional violation, that does not give Congress the right to object (the objection is to happen in the states, and the ECA says Congress will respect the conclusions in the states). Regardless, in 2020, the claims of a constitutional violation and been heard and rejected.
Re (2): That claim, if true, is plainly within the scope of an appropriate objection.
And they were within their rights to do so. The Joint Session is the forum where concerns about an election can be raised, debated, and ultimately resolved with a vote.
Wrong. It is not a forum where “concerns” get raised. It is a forum where conflicting slates of electors are resolved (there were none in 2020), where unqualified electors are objected to (again, there were apparently none), or where votes not “regularly given” are objected to (there were none). None of these cases applied this year.
The difference between those past instances and this year, however, is striking. In the past, when Democrats objected, they were praised for standing up for democracy.
They weren’t praised by Republicans! In 2005, Rep. Deborah Pryce, an Ohio Republican, said this:
But apparently, some Democrats only want to gripe about counts, recounts, and recounts of recounts. … So eager are they to abandon their job as public servants, they have cast themselves in the role of Michael Moore, concocting wild conspiracy theories to distract the American public.
In 2005, when Democrats objected to counting Ohio’s electoral votes, Nancy Pelosi praised the objections, saying, “This debate is fundamental to our democracy” and “we are witnessing democracy at work.”
This is a fair inconsistency to point out, though of course, there was no organized protest marching to the capital to “Stop the Steal.” John Kerry had conceded and had expressly disclaimed any connection to the objection.
This time around, anyone who objected has been called an “insurrectionist.”
Senator Hawley, you know that there is a difference between yelling “fire” in an open field and yelling “fire” in a crowded theatre. You learned that difference in your first year in law school. Have you forgotten it here?
You were not an “insurrectionist” because you objected; you were an “insurrectionist” because you objected on behalf of a President who falsely, as you knew, claimed that the election had been “stolen”; you were in “insurrectionist” because you traded off that lie for personal political (and campaign money) gain; you were an “insurrectionist” because you put your own political future above the truth and above our democracy.
Sadly, much of the media and many members of the Washington establishment want to deceive Americans into thinking those who raised concerns incited violence, simply by voicing the concern. That’s false. And the allegation itself is corrosive and dangerous.
No one thinks that “simply by voicing [a] concern” you incite violence. But no one could think that objecting to the counting of electoral votes in the context of a president calling on his VP to overturn a democratic election, and calling on his supporters to be “strong” and overturn a “stolen” election was “simply … voicing a concern.”
Let me say again, as I have said before: the lawless violence at the Capitol last week was criminal. There can be no quibbling about that. Those who engaged in it should be prosecuted and punished. Lawless violence undermines the democratic process by which we settle our disputes and threatens our democratic life. That applies to mobs of any and all political persuasions. Mob violence is always wrong.
Agreed about “those who engaged in it” — including any Member of Congress or their staff who aided in either the execution of the riot or planning of the riot.
But what do you think about those who riled up the “mob.” Is there no one in this video who you believe should also be condemned?
And what about those who falsely led these people to believe that the election was stolen? Have you had the courage to raise your voice on behalf of the many Missourians (my parents-in-law, for example) who want to know why Fox worked so hard to lie? See, e.g., Lis Power, In 2 weeks after it called the election, Fox News cast doubt on the results nearly 800 times (Media Matters 1/14/2021).
Or does your courage run out when it comes to your most loyal network?
But democratic debate is not mob violence. It is in fact how we avoid that violence.
We don’t “avoid … violence” by raising baseless objections in a context in which an angry mob will understand them as grounded in fact. All you smart lawyers knew it was a joke; many of the thousands who rioted thought it was true.
Our system of government is the envy of the world in part because it contains mechanisms to give Americans of different views a voice — without resort to threats or violence or unrest of any kind. Debate on the floor of Congress, like the debate that is provided for during the counting of electoral votes, is one of these. It is a forum for registering disagreement, airing differing views, and resolving these differences peaceably. This is our proud tradition as Americans.
You were not using your privilege as a Senator “to give Americans of different views a voice”: you were using it to give voice to ignorance — and cynically so, because you know that the views of the thousands who were rioting were based not in fact, but in ignorance.
Many, many citizens in Missouri have deep concerns about election integrity. For months, I heard from these Missourians — writing, calling my office, stopping me to talk. They want Congress to take action to see that our elections at every level are free, fair, and secure. They have a right to be heard in Congress. And as their representative, it is my duty to speak on their behalf. That is just what I did last week.
The question is not whether “they have a right to be heard.” Of course they have that right. The question is when. Should their “concerns” be aired where they can have no effect — since, by law, the choice of electors had been made and Congress had no right to second guess it? Or should their “concerns” be aired in a context in which they can have an effect, like in the context of election security legislation?
As to my specific objection: I objected with regard to Pennsylvania because the state failed to follow its own constitution. The Pennsylvania constitution has been interpreted by the state’s courts for over a century to prohibit mail-in voting, except in clearly stated circumstances.
This claim is not true, and even if true, under conservative legal thinking, irrelevant. As many have argued, there was nothing “unconstitutional” about PA’s law, passed in 2019, and used without objection in two elections before the general election in 2020. But more importantly, it was Rehnquist’s view (and maybe a majority of the Court in Bush v. Gore) that state constitutions cannot constrain state legislatures as they exercise their Article II power to set the “manner” by which the electors are chosen.
But last year, Pennsylvania politicians adopted universal mail-in voting anyway. To make matters worse, the Pennsylvania Supreme Court then changed the rules for when mail-in ballots could be returned. And when Pennsylvania citizens tried to go to court to object, the Pennsylvania Supreme Court threw out the case on procedural grounds, in violation of its own precedent. To this day, no court has found the mail-in voting scheme to be constitutional, or even heard the merits of the case.
Even if true, irrelevant. The Electoral Count Act promises PA that you, Congress, will count PA’s votes if (1) they have an election, (2) have a process for contesting results, (3) conclude that process 6 days before the College voted, (4) certify the results, and (5) have no competing slate of electors. You, Senator Hawley, broke that promise.
I also objected to point out the unprecedented interference of the Big Tech corporations in this election in favor of the Biden campaign, not just in Pennsylvania but everywhere. Their interference in our democratic process has only accelerated in recent days.
Again, if you have an objection, give a speech—in a context in which it is germane. But you could not possibly have imagined that you would speak about Big Tech for a couple of minutes on the floor of Congress and have Congress then vote to ignore the votes of the electors and elect Donald Trump instead. Did you?
Some wondered why I stuck with my objection following the violence at the Capitol. The reason is simple: I will not bow to a lawless mob, or allow criminals to drown out the legitimate concerns of my constituents.
Brave soul, you. But the “lawless mob” was urging you to make your baseless objection — and you yielded to their demands because you didn’t have the courage to tell them the truth.
And as for your constituents, yes, address their “legitimate concerns.” But give them the respect they’re owed if they ask for something illegitimate — an explanation, by, as you call yourself, a “former constitutional law professor,” of why their concerns cannot be addressed in the Joint Session to count the Electoral College votes.
I am proud to represent you in Congress. Your voice helps make this country and our democracy strong. These are difficult days for our country. All I can promise you is that I will do my best, day in and day out, to represent your voice, no matter who criticizes me.
Have you made these days more or less difficult? (Ok, a rhetorical question). And were you at all surprised when you made things worse?
And I will do my utmost to preserve, protect and defend this republic that we call home.
You can start by following the law, putting country over personal political ambition.
