Lingering ill will among House Republicans after another messy spending fight could complicate Speaker Mike Johnson’s bid to retain the House gavel — and potentially the Jan. 6 formalizing of Donald Trump’s election victory.
As president of the Senate, Vice President Kamala Harris would be the presiding officer during a joint session of Congress that day to complete the American presidential election process. It is a constitutional duty that essentially requires her to oversee the certification of her 2024 rival’s decisive victory.
To get to a swift and professional counting session, the House on Jan. 3 — or perhaps in the following two days — would need to elect a speaker, who would then administer the oath of office to the newly elected and reelected members.
If a protracted speaker fight lasts beyond 1 p.m. on Jan. 6, congressional scholars agree there are procedural options that could help ensure the counting and certifying of Electoral College votes that day. But that could prove difficult following yet another span of GOP infighting over government funding and the debt ceiling that saw Speaker Mike Johnson battling rebellious conservatives.
The drama has raised fresh questions about the Louisiana Republican’s fate in the next Congress and whether he would be able to comfortably win the floor vote for speaker on Jan. 3.
‘One big gray area’
As speaker, Johnson will not have a presiding official role during the Jan. 6 counting session. But what happens — or does not happen — in the three days before would be crucial.
“The country would be going into one big gray area,” Steve Smith, a professor of political science and global studies at Arizona State University, said about a speaker fight extending into Jan. 6. “The one precedent that is clear and could help determine what happens is at the start of a new Congress, the election of the speaker is the first thing the House does.”
“Nothing else happens until the speaker is elected. It’s been that way since 1789 when the first Congress convened,” Smith said. “Now, that worked just fine for the first Congress. But that could prove problematic here.”
Already, Kentucky Republican Rep. Thomas Massie has said he would not vote for Johnson on the floor during the scheduled Jan. 3 speaker election. With House Republicans holding only a razor-thin majority in the 119th Congress, Johnson can’t afford more than a few defections.
The House clerk presides over speaker elections, including at the start of a new Congress. Among the early actions on Jan. 3, according to a Congressional Research Service report, the clerk will order a quorum call before the House proceeds to the floor election for speaker, which the clerk will conduct with the assistance of tellers.
But even if a speaker is not elected in time for Jan. 6, multiple congressional and legal scholars told CQ Roll Call that the clerk – if both parties agree — could potentially swear in all House members because the Constitution grants the chamber exclusive authority to organize itself.
While there is no precedent in U.S. history to guide House members through such a scenario, they likely have the authority to, as Smith put it, “make up a precedent.”
And, should that be necessary, he said one option would be to reach an agreement under which “the clerk could organize the House and even allow for the Jan. 6 count to proceed — speaker or no speaker.”
Derek Muller, a professor at the University of Notre Dame Law School, said the Constitution gives the House the authority to organize itself, which would give members enough legal wiggle room to find a way out of what would be an unprecedented situation.
“They could elect an acting or temporary speaker, with a provision that the entire House would revisit the matter of a permanent speaker in X-number of days,” Muller said.
A joint session without a speaker
Justin Levitt, a law professor at Loyola Marymount University who served as senior policy adviser for democracy and voting rights in the Biden White House, said he thinks the joint session to count the electoral votes likely could proceed without a speaker.
The speaker has two formal roles on Jan. 6, Levitt said: selecting the two tellers who read out the votes and overseeing the House during any debates over objections to the Electoral College votes.
Levitt said the teller portion could likely be handled by majority vote or unanimous consent and objections would be unlikely under the new, higher threshold to sustain them established by the 2022 overhaul to the law governing the counting of presidential electoral votes. Dubbed the Electoral Count Reform Act, the law was enacted as part of a bipartisan reaction to the Jan. 6, 2021, attack on the Capitol and laid out specific procedures for presidential election certification, challenges and more.
Levitt also said that although the regular House cannot do business without a speaker, it is a different body — constitutionally — when it is part of a joint session to count the votes.
“I don’t think, as a constitutional matter, there is an impediment to members of the body proceeding with the electoral count if the body can’t do any work on its own without electing a speaker,” Levitt said.
The House, along with the Senate, also typically passes a concurrent resolution to enter in the joint session and lay out the procedures they will follow. Levitt pointed out that those same procedures are also laid out in the 2022 electoral count law, and Harris could rely on the statute to proceed with the count.
“As far as the Constitution goes, all the things you need are the Senate, the House and the president of the Senate, who is the sitting vice president,” Levitt said.
Sarah Binder, a George Washington University political science professor, said she sees “a path to do this, technically,” that starts with what she dubbed “general parliamentary law.”
“That’s what guides the House before it elects a speaker and adopts that speaker’s rule package. That’s rather amorphous,” Binder said. “There’s also the House Practice Manual.” Collectively, those procedure documents could serve as guardrails that would allow the joint session to go forward, she said.
Under this option, “the clerk would have procedural authority,” Binder said, though she added that “the clearest option would be, if there was the political will to do it, to elect a temporary speaker.”
All experts interviewed agreed that the best option would be a speaker elected on Jan. 3. The biggest force that could make that happen, they said, would be political pressure.
“They would be, especially the Republicans, under tremendous pressure to select a speaker candidate and elect that person,” Muller said. “Trump would be applying that pressure once it became a question of his election being official on Jan. 6.”
Of course, if Johnson cannot muster enough votes, another Republican would have to be willing to deal with a fractious conference and a mercurial Trump.
“Anybody who wants it,” California Republican Rep. Tom McClintock said Sunday on NewsNation, “obviously isn’t in his right mind.”
Michael Macagnone and Niels Lesniewski contributed to this report.
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