With the pro-fascist wing of Senate Republicans threatening not to seat Mary Peltola if she’s elected to the Senate, I wanted to give you a short primer of how all this works, not just in Peltola’s case but in the larger terrain of GOP denialism.
First, the House and Senate are fundamentally different. The senate is a “continuing body”; so Republicans are in some position to refuse to seat Peltola. The House on the other hand reverts to what we might call a parliamentary state of nature every two years. When the House reconvenes in January, there won’t be a Republican majority and Mike Johnson will not be Speaker. Everyone shows up with their state certifications in hand and it’s the clerk of the House who examines those credentials on a ministerial basis. Then everyone votes on who the Speaker will be. That’s why we had that drama with Kevin McCarthy a few years ago.
Some have noted that the Speaker picks the clerk. So he could pick a ringer clerk and that clerk could do Johnson’s bidding. This is true in theory. And while I won’t rule out anything with the Jan 6th crowd, I don’t think it’s a likely scenario. Johnson did pick the current clerk. But he picked him out of the group of people who’ve come up through the clerk’s office over the years. Particularly if there’s a clear and sizable Democratic majority in the House I don’t think there’s much room for funny business.
The Senate is different. As I noted, it’s a continuous body. So you come back into session with John Thune as Majority Leader when the new people show up. I actually don’t know off hand whether there are more Democrats or Republicans among the two thirds of senators who will remain from the previous Congress. But let’s set that aside for the moment. A lot will depend on the size of a Democratic Senate majority if the Democrats do take the majority. If you have a 53-seat majority, Democrats will become the majority without Peltola. Once they’re in the majority it will be up to them who gets seated, though the GOP could then filibuster. If it’s a 51-seat majority with Peltola as the 51st, that’s a different story.
What I suspect Republicans want to do is a replay of the Al Franken situation in 2009. Franken defeated Republican incumbent Norm Coleman. But it was a very close race and there was lengthy litigation that, if I recall correctly, lasted almost six months. This wasn’t a January 6th situation. Coleman was perfectly entitled to exhaust every legal route to contest the result. But over time it became clear that the real angle was to delay Democrats getting Franken’s vote — which was their 60th senator — as long as possible.
One additional factor. Alaska’s Republican Governor Mike Dunleavy has hinted he might refuse to certify Peltola’s election. If she’s not certified by the state, Republicans don’t really have to do anything. And it would at least be pretty difficult for Democrats to seat her. Courts at the state or federal level can intervene in a case like that. That’s different from Congress. The Constitution is pretty clear that who gets seated is solely the call of the House and the Senate. But here’s the catch. All polls suggest that Democrat Jonathan Kreiss-Tomkins is a strong favorite to win the governorship on Tuesday. If so, he gets sworn in in December, after which it’s no longer Dunleavy’s call.
There are many different permutations of how this could work. There are probably a few details I’m not thinking about. But this is the basic lay of the land. What Republicans can do is very, very limited in the House. The Senate is different, and significant funny business is possible — especially if Peltola’s is the seat that gives Democrats the majority.
