This weekend, Raheem Kassam of the National Pulse released a new podcast discussing former Vice President Mike Pence’s statements to the Federalist Society where he cast aspersions on former President Donald Trump’s claims about the 2020 election:
There are those in our party who believe that as the presiding officer over the joint session of Congress that I possessed unilateral authority to reject Electoral College votes. And I heard this week that former President Trump said I had the right to ‘overturn the election’. President Trump is wrong.Mike Pence, Remarks to the Federalist Society, 2/4/22
Raheem is entirely correct that Pence is being disingenuous and calculating, attempting to cast any follower of Donald Trump who questions anything about the 2020 election as being “un-American,” perhaps hoping to improve his own (nonexistent) chances in the next election. However, I must humbly disagree on one point. Early in the podcast, Raheem suggested that the role of the Vice President in counting the electoral votes before the Joint Session of Congress gave him the ability to send those electors back to the states in the event of disputes or controversies:
The point of a presiding officer in an election is to factor in all of those things. [Referring to laws changed unilaterally, illegal drop boxes, privatization of elections, sketchy voting machines, etc.] If not, why have a presiding officer at all? …If you think your job, Mr. Pence, is to just to grab an envelope from whomever gives it to you, open it up and say ‘…and the winner is!’ then f___ off and host the Oscars.Raheem Kassam, The National Pulse Podcast, 2/5/22
Raheem is echoing what many on the right have said since the debacle of January 6th, and several very intelligent constitutional lawyers have made the same argument. I recognize that I might well be wrong in my analysis, or at the very least it is ambiguous enough to allow for disagreement. However, I read the Constitution as saying that the role of the Vice President in counting the votes of the Electoral College is 100% a ceremonial thing, akin to being a presenter at the Oscars.
Article II, Section I, Paragraph 3 lays out the rules for electing the president. This section is repeated nearly word for word in the 12th Amendment, which clarified the way presidents and vice presidents were elected:
The electors shall meet in their respective states and vote by ballot for President… they shall name in their ballots the person voted for as President, …and they shall make distinct lists of all persons voted for as President, …which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–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 person having the greatest number of votes for President, shall be the President…”US Constitution, Amendment XII
Nothing in there gives the vice president any leeway; he is instructed to simply open the certificates and allow the votes to be counted. I believe that what the founders intended is that any discrepancy or dispute about the electoral votes should be settled at the state level before they arrived at the Joint Session. They clearly did not envision states being complicit in rigging the presidential election. The role of the vice president really is to open the envelope and say “…and the winner is!”
During the podcast, Raheem mentioned the disputed election of 1876, where three states sent dual slates of electors to Congress. At the time, the Republicans maintained that the wording of the Constitution meant that the President of the Senate, Thomas Ferry, had discretion about which certificates to count. Democrats countered that Ferry was merely an Oscar host, and that the Join Session had final say on which votes were counted. Both positions were entirely self-serving.
Unfortunately for us, the way the issue was resolved did not set a clear precedent for the future. Congress instead passed a law creating a special commission to figure out what to do, and the commission eventually settled on a compromise wherein Congress accepted the Republican slates of electors and new President Rutherford Hayes agreed to withdraw federal troops from the South and end Reconstruction. While a commission like this was possible in 2021, Vice President Pence could not have called for it on his own. It would have required a majority in the House and the Senate, and there were not enough Republicans with the courage to do so.
Others have pointed to the-Vice President Richard Nixon’s role in certifying the 1960 election, in which he lost a close and contested race to Senator John Kennedy of Massachusetts. The state of Hawaii was called for Nixon by just over a hundred votes on Election Day but was immediately challenged by the Democrats, who called for a recount. As the recount progressed, it began to look like Kennedy might win. Both Republican and Democrat electors for Hawaii signed their certificates by the deadline and sent them to Washington DC for the Joint Session of Congress. A recount later confirmed that Kennedy had indeed won the state, so new certificates were signed by the Democrat electors. However, mail being slow back then, especially from Hawaii, both sets of electoral votes were present when Vice President Nixon presided over the Joint Session.
With both the state legislature and the high courts of Hawaii having declared that Kennedy was the winner, Nixon called for unanimous consent of the Congress to accept the Democrat electors. This was a very different situation from January 6th, 2021. While Republican electors in some of the contested states did sign their certificates, just in case there was a valid dispute, the legislatures and courts of those states all stood behind the Democrats. Had Vice President Pence made a motion for unanimous consent to accept the Republican electors in these states, it would have been soundly defeated.
Further, there is nothing in the Constitution that grants the vice president the authority to send the electoral votes back to the state legislatures, as President Trump and many conservative activists were demanding. By the time the Joint Session convened on January 6th, the die was cast. Ultimately, the problem lay with the state legislators who rubber-stamped the electoral votes of their states after ignoring the problems of mail-in ballots and privatized election systems.
Any further objections needed to be made by the congressmen and senators in the Joint Session, not the vice president. Several Republicans had planned to object, just as Democrats did during the vote counts in 2000, 2004, and 2016, but the portrayal of the protest at the Capitol that day as an “insurrection” took the wind out of their sails. I predicted in November 2020 that the media would do their best to portray the election as a fait accompli, and that any disagreement would be seen as interfering in the will of the American people. Unfortunately, too many cowardly Republicans bowed to this media pressure, and so investigation of the myriad problems in the election of 2020 were relegated to the fringe.
We can grumble at Pence for not doing more, but we cannot deny that he was sticking to the beaten path of American political precedent. Trump was asking him to do something that had never been done before, which raises the real question of all of this. Is it time for us to start pushing the limits of our laws and our Constitution? The left clearly has no respect for them, and because of that they’re running roughshod over our society and our political system. Is it time to fight back? To cross our own Rubicons?
Abraham Lincoln is respected today as one of our greatest presidents, but he tore the Constitution to pieces to save the Union. He illegally raised federal troops, he suspended the writ of habeas corpus, and he engaged in a war that killed 600,000 Americans, all to save the country he served.
Are we at that situation again? Are we angry with Mike Pence because he failed to see the gravity of the situation, and failed to follow in Lincoln’s footsteps to take unprecedented (and probably unconstitutional) steps to save the country? If so, then let us clarify that perspective and decide how we can move forward in this post-constitutional age.
One thing I wholeheartedly agree with Raheem Kassam about is that Mr. Pence, like many other Republican leaders, is very much a creature of the establishment swamp. He would like nothing more than to go back to pretending that the American government still works for the people. Listen to the whole podcast. Raheem and co-host Natalie Winters discuss in detail how Big Tech and other oligarchic enterprises are buying our democracy bit by bit. Once-venerable institutions like the Federalist Society are now wholly owned by the technocracy.
Who can we turn to? America will not be made great again by people like Mike Pence, no matter how much they claim to revere our Constitution. The old guard of the GOP establishment acts like the Roman Senate in the imperial era: going through the motions and pretending they still matter. No, if we are to have a fighting chance to save our republic it will be rabble-rousers like Donald Trump who upend the comfortable establishment. A new generation of Republicans is rising, with leaders such as Matt Gaetz and Anthony Sabatini of Florida, Joe Kent of Washington, and Blake Masters of Arizona. These men understand the gravity of the situation, that we will not be saved by the same appeals to the Constitution and to decency that have been issued by Republicans for three generations now. Saving America means becoming radical in the defense of our liberties, our values, and our traditions. Mike Pence is not the man for this time.