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There’s Some WTF in This Lame Duck Session of Congress

Appointed, maybe and not-yet, maybe-never members dot the Capitol

Members-elect from the 116th Congress pose for the freshman class photo on the East Front of the Capitol on November 14, 2018. (Tom Williams/CQ Roll Call)
Members-elect from the 116th Congress pose for the freshman class photo on the East Front of the Capitol on November 14, 2018. (Tom Williams/CQ Roll Call)

Some of These Members Are Not Like the Others

Every lame duck session of Congress is special in its own way, and the current one, operating alongside the orientation session for newly elected members of Congress, has its share of oddities and weirdness. 

  • An Appointed House Member?

Speaker Paul D. Ryan swore in new members of the House on Tuesday, those who won special elections to fill out unexpired terms, Joseph D. Morelle, D-N.Y., and Mary Gay Scanlon, D-Pa. Oh, and also an “appointed” member, Republican Kevin Hern of Oklahoma.  

An “appointed” member of the House? But the Constitution states members of the House need to be elected, in special or general elections, right? From Article 1, Section 2: “When vacancies happen in Representation from any State, the Executive Authority therof shall issue Writs of Election to fill such Vacancies.”

They do things different in Oklahoma, though.

Hern did defeat Democrat Tim Gilpin on November 6 in the general election for the District 1 seat vacated earlier this year by Republican Jim Bridenstine, who is now the administrator of NASA. Oklahoma law does not allow special elections in even-numbered years, though, so the Bridenstine seat had been vacant since April 23, and the general election was for the 116th Congress, which begins January 3. 

But the state of Oklahoma basically called a mulligan on the results, and, citing state law, said the governor had the authority to appoint Hern to fill out the unexpired term of Bridenstine.

“The provisions of 26 O.S. 12-101(B) (Oklahoma Statutes) require the election held November 6, 2018, for the seat to which Kevin Hern was elected, to be treated as election, within the meaning of Oklahoma law, to fill the unexpired term of Jim Bridenstine who resigned on Monday, April 23, 2018. Accordingly, pursuant to that statute, my appointment, as Governor of the State of Oklahoma, is the ministerial act incident to that election,” Gov. Mary Fallin wrote to Karen Haas, the House Clerk, on November 8. 

That letter was accompanied in the Congressional Record with one from Fallin to Oklahoma Secretary of State James A. Williamson citing her authority to “appoint” Hern: “Please file for record the following executive order. By virtue of the authority vested in me as Governor of the State of Oklahoma, I hereby appoint: Kevin Hern as United States Representative, District 1 for the unexpired term of Jim Bridenstine who resigned on Monday, April 23, 2018 and, whose term expired on January 3, 2019 as provided by 26 O.S., Section 12-101(B).”

That all seemed good enough for Haas, who wrote to the speaker on the following day: “I have the honor to transmit herewith a scanned copy of a letter received from the Honorable Mary Fallin, Governor of Oklahoma, indicating that the Honorable Kevin Hern of the First Congressional District, is elected to fill the vacancy in the 115th Congress created by the resignation of the Honorable Jim Bridenstine on April 23, 2018. This certification has been submitted under the laws of Oklahoma as stated in the accompanying documents.”

For those keeping score at home, the applicable Oklahoma statute states: “No special election shall be called if the vacancy occurs in an even-numbered year if the term of the office expires the following year. In such case, the candidate elected to the office at the regular General Election shall be appointed by the Governor to fill the unexpired term.”

And just like that, an “appointed” member of the House, a constitutional no-no, became an “elected” member of the House, and sworn in on the floor on November 13. 

  • A Not-Yet, Maybe Never Member?

Rep.-elect Brenda Jones, D-Mich., elected in a special election for the unexpired term of former Rep. John Conyers Jr., D-Mich., did not get sworn in with the other special (and one appointed, apparently) members on Tuesday and might never even take her seat. 

Jones, the president of the Detroit City Council, did not make it to the general election ballot as the Democratic nominee, having lost the primary for that shot at the seat in the 116th Congress to Rep.-elect Rashida Tlaib, D-Mich. She did win the special election to fill out Conyers’ term, though.

But Detroit, we have a problem. 

There is no precedent for holding both local and federal office simultaneously, and Jones apparently does not want to leave her seat on the city council to take office for less than two months.

In the meantime, she’s waiting on guidance from the speaker and the clerk’s office, and hopes to take office maybe sometime after Thanksgiving, the Detroit News reports

  • The Maybe Members

When a race is too close to call, the prospective, or maybe member, will attend New Member Orientation. No sense missing out in the event that you win, right? (Unless you end up losing of course, and then you end up with a strange vacation to D.C., during a cold snap, and a set of information that is interesting, but maybe not all that useful for a non-member of Congress.)

Consider the strange case of Nate McMurray, the Democrat who is in a too-close-to-call race against indicted Rep. Chris Collins, R-N.Y.

McMurray claimed this week he was barred from attending orientation. The House Administration Committee says it was a paperwork problem because McMurray conceded, then unconceded, and at any rate, he was welcome to come. But he already missed some of the good stuff already, like the fancy Tuesday night dinner in Statuary Hall. And he might end up losing anyway. It’s weird. 

Over on the Senate side, Florida Republican Rick Scott, locked in a recount with Democratic Sen. Bill Nelson, attended this week’s GOP leadership elections and did the grip and grin thing, even though there is no declared winner in the tight contest.

He even took pictures with the new class of Republican freshman senators and Senate Majority Leader Mitch McConnell, R-Ky. Better safe than sorry, right? No one likes to miss picture day. And, if he ends up losing, those photos would be real collectors’ items. 

This Week’s Podcast


So what really goes on in New Member Orientation anyway? A “mix of business and fun,” according to Roll Call Staff Writer Katherine Tully-McManus, who breaks it down for us on the latest Political Theater Podcast. 

The Kicker

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