Here is a sentence that shouldn’t need to exist in a functioning legislature: two members of Congress are circulating a letter asking their colleagues to promise, in writing, that the people who win the midterm elections get to take their seats. The pledge comes from Reps. Don Bacon, a Nebraska Republican, and Josh Gottheimer, a New Jersey Democrat — the Wall Street Journal first reported it — and its premise is a worry that President Donald Trump’s allies in Congress might try to block newly elected Democrats from being sworn in by claiming the election was rigged, a replay of the pressure campaign over certifying Joe Biden’s 2020 victory that ended in the deadly Jan. 6, 2021, Capitol riot. CalMatters set out to find out who, in California’s delegation, would sign.
The pledge’s language is not exactly radical. Signers commit to oppose “efforts to undermine free and fair elections or override the will of the voters, including any attempt to refuse or delay the seating of any Member-elect who presents a validly issued election certificate,” and to recognize “the election winners certified by each state pursuant to that state’s law.” In other words: I will acknowledge that the winners won. This is the political equivalent of a pledge to show up to work.
California’s congressional delegation has eight Republicans plus one independent who caucuses with them. Only one of the nine signed: Rep. Kevin Kiley, the Republican-turned-independent from the Rocklin area. “When the election’s over, we should get things certified and get started on the important work Congress has to do,” Kiley said, adding that he’d accept the result even if he loses his own race against Dr. Richard Pan, a Sacramento Democrat, in a newly drawn Democratic-leaning district.
The rest of the responses are a small museum of the modern congressional non-answer. Rep. Young Kim of the Anaheim area hasn’t seen the pledge but “will seat new members,” her spokesperson said. Asked whether Rep. Jay Obernolte of the Hesperia area had signed, his spokesperson said, “I can’t answer that.” Bakersfield-area Rep. Vince Fong and his wife had a baby last week, his spokesperson texted, so he wasn’t available to comment on whether he would seat new members of Congress — a genuinely good excuse, to be fair. A spokesperson for San Diego Rep. Darrell Issa responded without saying whether Issa had signed. And spokespeople for Reps. Ken Calvert, James Gallagher, Tom McClintock and David Valadao didn’t respond at all.
After CalMatters published its story Tuesday, Gottheimer’s office supplied the letter and its 17 signers. Besides Kiley, the Republicans on it are Reps. Mike Lawler of New York and Brian Fitzpatrick of Pennsylvania. Five California Democrats — Reps. Jim Costa, Salud Carbajal, Jimmy Panetta, Gil Cisneros Jr. and Mike Thompson — also signed.
The reason a pledge like this has any practical weight is arithmetic: Republicans hold a razor-thin House majority going into November, so even a small bloc of Republicans who keep the promise could block any far-right effort to refuse seating new Democrats after the midterms. Pledges are cheap, but in a one-vote world, cheap things can matter.
The scenario the pledge is aimed at isn’t invented from nothing. The Heritage Foundation — the think tank closest to Trump’s movement — argued in April that Congress has the power to investigate elections its members believe are fraudulent. “Congress can ferret out fraudulent votes of all sorts — not just voting by noncitizens,” wrote senior research fellow Scott Yenor. “Congress can then declare elections invalid and order a new election when it judges elections to be fraudulent.” Translated from think-tank: the House could, in this telling, simply decline to accept results it doesn’t like and demand do-overs.
Meanwhile, federal investigators have been aggressively trying to validate Trump’s claims of widespread fraud in Democratic-controlled states, including California. Agents have arrested a few dozen people around the country in recent weeks for allegedly voting illegally — but so far, no proof has surfaced of the widespread conspiracy Trump has claimed for years is rigging elections for Democrats. (We’ve reported on election-law experts’ warnings about the administration’s midterm posture.)
For the record, the prevailing view among election lawyers is that the nightmare scenario stays a scenario. UCLA law professor Rick Hasen told WNYC earlier this month that a leadership attempt to block new members on Jan. 3, the swearing-in day, “would be profoundly anti-democratic if it happened” — but that it’s unlikely. “If Democrats have won control of the House of Representatives, and somehow on Jan. 3, somebody tries this kind of maneuver, it’s going to provoke such a massive public reaction,” he said. “This just seems very far-fetched.”
Gottheimer, for his part, told NPR that after Jan. 6, it’s better to be safe than sorry: “Because we’ve lived through that, I think it’s really important that we, again, shut down any opportunity for those who want to stop the will of the people.”
Signing costs nothing and binds no one to anything a court would enforce, which makes the responses more informative, not less: it turns out that “will you seat the winners?” is a question some offices need to think about. Nine California Republicans and Republican-caucusing members were asked. Nearly two weeks from the election, the delegation’s clearest position belongs to a newborn in Bakersfield.