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. …
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….
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….