After the Supreme Court ruled last week that Congress would need to pass legislation for a state to bar a federal candidate under the “insurrection clause,” Democrats are making a long shot attempt to do just that.
Reps. Jamie Raskin and Debbie Wasserman Schultz have started revising a bill they introduced in 2022 affirming that “anyone who swears to protect the Constitution but violates that oath by engaging in insurrection or rebellion can never serve again in federal or state office.”
“We need to have a process in place now that the Supreme Court essentially abdicated its own power and authority in the field,” Raskin told NOTUS.
The court issued a unanimous ruling stating that Donald Trump could not be unilaterally kicked off the ballot in Colorado. However, a 5-4 conservative majority said that no state could bar a federal candidate from running without Congress taking action to enforce Section 3 of the 14th Amendment — the insurrection clause.
“We want to make sure that we’re on record and have clarity, that here is the mechanism that we are proposing that would meet the Supreme Court’s test, and that would ensure that we have a way to implement Section 3,” Wasserman Schultz told NOTUS of her and Raskin’s revision to their original bill. “If you don’t introduce legislation, then nothing happens, and you want to make sure that we have a vehicle for action.”
As things stand, the chances of Speaker Mike Johnson, an unabashed Trump ally, bringing any bill like this to the floor for a vote are close to none. If Democrats take control of Congress in January, there is a brief window of time they could try to disqualify Trump from office — even if he wins the election.
“When Congress convenes on Jan. 3 at noon, it has all of its lawmaking powers,” said Matt Glassman, a fellow at the Government Affairs Institute at Georgetown University and an expert in congressional procedure. “That would be an unusual thing for the Congress to pass major legislation in the first three days. But if they wanted to pass legislation that implemented section 3 of the 14th Amendment — to the degree it satisfied the courts — as an exercise of congressional lawmaking, it would be perfectly valid.”
Raskin and Wasserman Schultz are aware that their bill is unlikely to get a committee hearing under Republican leadership. But they are steadfast in believing certain steps need to be taken to bar Trump — or future federal candidates who participate in insurrectionist activities — from getting elected. Raskin’s and Wasserman Schultz’s offices did not respond to a request for comment on whether they would support pushing this legislation if Trump does get elected. Short of legislation, Democrats could also raise objections during the certification of the electoral votes should Trump get elected in November — though Congress made it harder to overturn a certified presidential election in the wake of Jan. 6.
The Supreme Court did not address whether Trump participated in an insurrection. However, the former president is still facing charges stemming from his actions around Jan. 6. A Colorado court previously ruled that Trump could be barred from the ballot for speaking before the Capitol riot, thereby participating in an insurrection.
Raskin said outreach for more Democratic support for the bill hasn’t begun yet because “we’re still hammering out the terms of this legislation.” But he’s already heard from some senators — who he wouldn’t name — and will announce developments soon.
Even without bill text, some House Democrats say they want to see the House take action.
Rep. Zoe Lofgren, who served on the select committee to investigate the Jan. 6 insurrection, said it would depend “on what the legislation looks like” when NOTUS asked her if she would support efforts to incorporate the insurrection clause into legislation.
Rep. Dan Goldman told NOTUS that passing the bill “realistically [wouldn’t] happen this Congress,” but he looks forward to “pitching in any way I can.”
“I think we were gonna have to balance constitutional due process with the concerns of allowing someone who engaged in an insurrection to be on the ballot,” Goldman said of what he would want to see in the bill. “It has to be done fairly, it has to be done justly. But it also, in my view, needs to be done in an expeditious way.”
As far as Republican support goes, Raskin said he’s hopeful some of them will see the long-term benefit of the bill.
“This will become a mechanism for the indefinite future,” he said.
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Tinashe Chingarande is a NOTUS reporter and an Allbritton Journalism Institute fellow. Byron Tau, a reporter at NOTUS, contributed to this report.