• Swearing in the Phoenix: Toward a More Sensible System for Seating Members of the House of Representatives at Organization

    Brian Kalt
    MSU Law Faculty Repository
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    Under U.S. House precedent, any member-elect can challenge the right of any other member-elect to take the oath of office at the beginning of a new term. The uncontested members-elect then swear in and decide the fate of those who were forced to stand aside. If the House is closely divided and there are disputed elections at the margins, a minority party could exploit this procedure to try to seize control of the House. This would be outrageous and damaging, even if the effort failed. Contending for ultimate control, both sides could level motions, appeals, and tit-for-tat pre-oath challenges. The proto-House would degenerate into a chaotic mass of votes, meta-votes (about who gets to vote), and meta-meta-votes before anyone has even been sworn in. Instead of the House being controlled by the party that won the most seats in the election, it might go instead to the party that is most disciplined and unified-or, failing that, to the party that is more adept at parliamentary machinations. This nightmare is not completely hypothetical; the House once witnessed a power grab much like this-and it succeeded. But even an unsuccessful attempt could worsen the national partisan divide, weaken the House's legitimacy, and threaten the House's already dangerously low levels of comity. So could an attempt by a majority to bolster its advantage by a seat or two.
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