National Review Online
Wednesday, April 27, 2022
On Friday, a state administrative-law judge in
Georgia held a hearing on whether to remove Congresswoman Marjorie Taylor
Greene from the ballot on the theory that her inflammatory rhetoric leading up
to the January 6 Capitol riot amounted to engaging in a rebellion against the
United States government. This effort is anti-democratic folly, and it should
be rejected. As we have seen too often in recent years, politicians who
disregard norms of behavior tend to drive their foes into overreactions that
are also dangerous to our system.
Greene, a conspiracy theorist who does not belong in Congress, has
been no exception. When House Republicans failed to use the traditional prerogative of a party
caucus to strip her of committee assignments, House Democrats used the power of
their majority to oust a member of the opposing party from serving on any
committee. That set a novel precedent that Democrats will live to regret.
Greene’s opponents are at it again. A group calling
itself “Free Speech for the People” filed a challenge to her reelection bid,
citing Section 3 of the 14th Amendment, which bans anyone who has taken an oath
to support the Constitution as a federal or state officer from serving in
Congress if her or she has, after taking the oath of office, “engaged in
insurrection or rebellion against the [United States], or given aid or comfort
to the enemies thereof.” The bar is mandatory, but may be lifted by a
two-thirds vote of both houses of Congress. Greene was sworn into Congress
three days before January 6.
Section 3 was passed by Congress a year after the Civil
War for a good reason: to prevent Reconstruction from being undermined by the
immediate recapture of Southern governments by not-very-ex-Confederates. But
even that generation recognized that this was strong medicine in a democracy:
In 1872, President Ulysses S. Grant signed the Amnesty Act removing the
disability from most of Section 3’s targets.
If Greene had personally engaged in violence or
physically prevented Congress from meeting to vote on the peaceful transfer of
power, there would be a serious argument for using Section 3. But the case
against her boils down to the charge that she incited the riot by intemperate
words.
Under Section 3’s language and the
Reconstruction-era precedents, that is not enough: Congress and the courts in
that era, understanding the danger of punishing political speech, refused to
disqualify officials over pre–Civil War secessionist rhetoric. Only those who
actually “engaged” in the rebellion or aided it after the outbreak of violence
were disqualified. No evidence was presented of Greene doing any such thing.
In fact, as with other congressional Republicans who
bought into Donald Trump’s stolen-election theories, Greene stayed in the
Capitol and participated in the vote when it resumed — a regrettable vote to
object to certifying the election, but one that is legally protected by the
speech and debate clause.
The administrative law judge’s ruling, which is expected
later this week, can be appealed to Georgia secretary of state Brad
Raffensperger. Raffensperger, who has previously proven his integrity in
standing up to pressure from Donald Trump and Stacey Abrams, should do the
right thing here and reject the challenge.
As with impeachments or expulsions from Congress, the
Section 3 process is an extraordinary, anti-democratic remedy that should be
used only on the basis of the most powerful evidence. On May 24, Greene
faces a Republican primary challenger, Jennifer Strahan. The voters of
Georgia’s 14th district would be wise to reject Greene. But in a democratic
republic, that choice should be theirs alone to make.
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