Groups of voters in at least three states have embarked on a high-stakes legal fight to disqualify lawmakers who participated in or provoked the Jan. 6, 2021, insurrection at the Capitol. The voters, represented by the progressive group Free Speech for People, argue that Section 3 of the 14th Amendment to the Constitution bars anyone who has "engaged in insurrection or rebellion" from holding "any office, civil or military," in the United States.
The effort so far has been mixed — one federal judge dismissed the case against Rep. Madison Cawthorn (R-N.C.), pending appeal, but another has allowed litigation to proceed against Rep. Marjorie Taylor Greene (R-Ga.). Free Speech for People has also filed challenges against two GOP congressmen in Arizona, representatives Andy Biggs and Paul Gosar, plus state Rep. Mark Finchem (R), and another group is trying to disqualify a group of Wisconsin Republicans, including Sen. Ron Johnson (R).
Should Jan. 6 "insurrectionists" be barred from serving in Congress?
Pro: The law is the law
The "disqualification clause" of the 14th Amendment "adds a constitutional requirement for holding federal office, namely, refraining from insurrection or rebellion against the United States after taking an oath to support the Constitution," and like all such constitutionally prescribed limits on holding federal office — age, citizenship, term limits — it is "self-executing, meaning it takes effect immediately and without the need for congressional intervention," Bruce Fein, an official in the Reagan Justice Department, writes at The Hill.
In effect, Fein writes, "the candidacies of Greene and Cawthorn will be stillborn if they are proven to have engaged in insurrection against the United States on Jan. 6."
Con: That's not what the law means
Section 3 of the 14th Amendment was ratified in 1868, mostly as a way to "to get rid of people who wanted to come back to Congress" or the federal government after joining the Confederacy in the Civil War, "usually as military officers," Ron Elving explains at NPR News. Since Reconstruction ended, "it's become something of a relic, as we have not had another insurrection or rebellion on the scale of the Civil War."
"Since 1868, the federal judiciary has had few occasions to interpret Section 3," so "the courts are largely in uncharted territory," Josh Blackman and S. B. Tillman write in The New York Times. But according to a persuasive 1869 case, Section 3 is not self-executing, so "only the federal government — not the states — can disqualify insurrectionists from congressional ballots." Congress hasn't done that, they add, so "state courts and elections boards lack jurisdiction to exclude alleged insurrectionists from the congressional ballot."
Pro: Fealty to the Constitution is a minimum qualification
"Do we really need the courts to tell us people who participate in insurrections against the government don't belong in office? Is that the sad state of our politics in 2022?" Joyce Vance asks at MSNBC. For her part, "Greene's conduct isn't really in question — no matter how many times she rolls her eyes and tries to will her own words away" — and her April 25 testimony in federal court "presented a stark picture of someone who seems intent on turning democracy into cosplay."
Con: The courts will never go along with this
Ultimately, it's unlikely these challenges to the candidacies of lawmakers tied to Jan. 6 "will have any teeth," MSNBC's Vance writes. "Using this particular Civil War-era constitutional amendment to hold Greene accountable is fraught," and "lawsuits like this may not be enough to keep people who sought to undo one of the most sacred traditions of our government, the peaceful transfer of power, out of positions where they can do still more damage to democracy."
Pro: "Insurrection" must have consequences
"Insurrections aren't everyday, casual affairs," and in the Greene hearing, "Free Speech for the People pointed out that the Constitution doesn't normalize insurrection," Vance writes at MSNBC. It's some consolation that "even if the challenge to Greene's candidacy is unsuccessful, it has played a role in exposing more Americans to painful truths about the times we live in. Every step toward ensuring Americans don't think of an insurrection as an event to move on from without holding those responsible accountable is a step in the right direction."
Con: Voters decide the consequences
Cawthorn's lawyer called the challenge to his candidacy "fundamentally anti-democratic" and argued it "supplants voters for state bureaucrats who will determine who can represent the people." And in the end, the fates of Cawthorn, Greene, and the others rests with the voters in their districts, attorney Teri Kanefield concludes at NBC Think.