Wednesday, April 27, 2022

Don’t Kick Marjorie Taylor Greene Off the Ballot

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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