It is doomed to fail — except, perhaps, at its scarcely disguised purpose of winning Hawley favor in the eyes of the Trumpian base. Think of it as the first act of Hawley’s all-but-inevitable 2024 presidential campaign. Think of it as what it is: a stunt.
Yet while irresponsible, Hawley’s move is not necessarily a terrible development. It forces a vote that will have the salutary effect of requiring his Republican colleagues to decide — and to put on the record —whether their loyalty is to President Trump or to the Constitution. Better to know than to guess. Better to inflict some accountability rather than to enable dodging.
Put another way: Any vote that Senate Majority Leader Mitch McConnell (R-Ky.) fervently wishes to avoid is one I’m for. Put every member of the House and Senate on the record, and let them reap the consequences, for good and for ill, in the short term of political fallout and in the long view of history. Those who vote against certifying Biden’s victory can explain it to their grandchildren.
To back up, here’s what’s supposed to happen on Jan. 6, as set out in the 12th Amendment and the 1887 Electoral Count Act. Congress convenes in a joint session, presided over by Vice President Pence, in his role as Senate president. According to the Constitution, states submit their electoral votes to Congress. On Jan. 6, the date specified by the Electoral Count Act, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
The law does set out a mechanism for challenging the certificates. It requires a request by at least one House member — in this case, the endlessly Trump-enabling Mo Brooks (R-Ala.) — and one senator, hence the significance of Hawley’s announcement Wednesday that he would join Brooks’s mad crusade.
“I cannot vote to certify the electoral college results on January 6 without raising the fact that some states, particularly Pennsylvania, failed to follow their own state election laws,” Hawley harrumphed. “And I cannot vote to certify without pointing out the unprecedented effort of mega corporations, including Facebook and Twitter, to interfere in this election, in support of Joe Biden.” Um, Senator, there is no vote requiring you to certify. A vote only happens if someone like you insists on a challenge.
Even if Hawley's complaints were justified, he’d be raising them in the wrong place. The place to decide whether Pennsylvania complied with Pennsylvania’s election laws is in the courts of Pennsylvania — which, guess what, did just that, at Trump’s behest. He lost. Pennsylvania certified in timely fashion that its electors cast the state’s votes for Biden. Case closed. Hawley’s objection on the ground of alleged corporate interference is even dumber. Hold a hearing, Senator. Draft a bill. In the joint session, your role is to accept the votes of the electors. Period.
In pre-butting criticisms of his conduct, Hawley proffers a fallback excuse: Democrats did it, too. True. In 2005, Rep. Stephanie Tubbs Jones (D-Ohio) and Sen. Barbara Boxer (D-Calif.) objected to certifying Ohio’s electoral votes; their complaints were rejected by a majority of both chambers. In 2001 and again in 2017, Democratic House members lodged complaints but could not find a single senator to join them, as the law requires. Their objections were gaveled down by the sitting vice presidents, Al Gore — the losing presidential candidate — and Joe Biden. “It is over,” Biden announced, as he rejected the challenges to Trump’s election.
As Hawley well knows, it is over for Trump this time. All his intervention will do is to gum up the works, temporarily. If he persists, the House and Senate will debate separately for two hours — and even if Republicans retain their majority, there appear to be well enough Republicans willing to join in rejecting the challenge. This is literally political theater.
There is an argument to be made that Hawley’s move comes with additional costs. The more Republicans are forced to go on the record on Biden’s election, the more they may feel pressured to pledge fealty to Trump. And the more votes against Biden, the more powerful the bogus argument that he is an illegitimate president. And merely insisting on this challenge risks more normalizing of what should be abnormal.
Still, there are upsides in insisting on a vote. Put Republicans to the uncomfortable test. During the four years of Trump’s presidency, they have too often been able to evade accountability. If Hawley wants to put them to the test, let us watch and see if they choose to fail.