Are maskless House members scofflaws?

Back in the early days of television, at the end of each episode of a popular western series, the recurring question was, “Who was that masked man?” The invariable response was: “Why that, sir, is the Lone Ranger” (cue the William Tell Overture trumpet and the masked man’s hearty farewell as he gallops-off into the sunset: “Hi-Ho Silver, away”).

In the chamber of the U.S. House of Representatives today, where everyone is still required by special House rule (H. Res. 38, adopted Jan. 12, 2021) to wear face masks to prevent the spread of COVID-19, the question being posed about a handful of Republican bald-faced outliers is quite different: “Why are those members maskless?” Their answer, as best I can tell, is that it’s an expression of their individual liberty in the face of what they consider to be over-weaning majority party paternalism.

Under the terms of the special rule, maskless floor dwellers are subject to a $500 fine for the first offense and $2,500 for each subsequent violation. Offenders have the right to appeal their fines to the House Ethics Committee.

Even before the CDC issued guidelines removing the masking and distancing requirements for the vaccinated general public, the coterie of maskless members was flouting the House rule, even to the extent of posing for beaming, bare-faced selfies at the minority leadership table at the front of the chamber. The members were obviously not oblivious to the fact that their blatant rule-breaking antics were being broadcast to the nation via C-SPAN.

According to the Constitution, “Each House may determine its rules of proceeding [and] punish Members for disorderly behavior.” The provision does not contain an escape clause that allows members to ignore or contravene those rules they do not consider to be fair or just. Presumably the clause assumes that all members will abide by their oath to uphold the Constitution which includes those rules adopted pursuant to it.

Granted, this display of scoff-lawlessness will be forgotten at some point down the road as the pandemic recedes in the rearview mirror. It does bring to mind, however, another group of Republican show-boaters over 30 years ago — the so-called “Gang of Seven” that included future Speaker John Boehner (Ohio) and their “bag-man,” Rep. Jim Nussle (Iowa), so known for his gimmick of delivering a one-minute speech in the well of the House with a paper sack over this head to symbolize the shame he felt attached to the institution from the Democrats’ corrupt behavior as exemplified by the House post office and bank scandals.

But the shenanigans being pulled today by the group of maskless Republicans is quite different. Not only is it dangerous from a health risk standpoint, but it is calling attention not to majority party corruption but rather to the behavior of the protesters themselves as self-appointed, self-anointed keepers of liberty’s flame — a foolish claim at best and a downright narcissistic ploy at worst.

It becomes all the more absurd when one considers the mask scorners think they have a constitutional case to present in the courts, primarily on grounds that their fines, which are deducted from their salaries, are a violation of the 27th Amendment which prohibits any “law varying the compensation…of the Senators and Representatives” from taking effect prior to an intervening election. Never mind that this so-called “Madison amendment,” initially put forward in 1789 as one of the proposed Bill of Rights in the First Congress (and not finally ratified until 1992), was obviously aimed at preventing members from increasing their income, not reducing it. But, more to the point, a fine is not a salary adjustment which remains the same for tax and financial disclosure purposes.

Moreover, it is doubtful the House Republican leadership would rally around, let alone join in, such a frivolous lawsuit for the benefit of a few party scofflaws.

House Speaker Nancy Pelosi (D-Calif.) perhaps offered the best remedy for dealing with this unhealthy band of bothers when she half-jokingly suggested they be allocated a portion of the House visitors’ gallery from which they could speak and vote. Let them determine how close or distanced they want to be from each other under such potentially mini-spreader circumstances.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.