Speakership Vote and Congressional Count Act

Liberty Election Reform & Political Integrity
1

Two members of the House of Representatives are claiming that if the Speakership Vote does not resolve by January 6th, the Congressional Count cannot proceed (because the members of the House will have yet to be sworn in). If this is true, then this represents a loophole in the Congressional Count Act that must be plugged to prevent a crisis, allowing the Congressional Count to proceed anyway. Until the Congressional Count can happen, the Electoral College result cannot be certified, and the new President cannot be sworn in.

To demonstrate the possible implications if this is indeed the case, let us consider what would happen this time around if the Congressional Count has not yet occurred at Noon Eastern on January 20. Biden and Kamala would still lose their power, but Trump could not yet be restored at that point, and neither could Vance become either Vice President or Acting President. Ordinarily, the Speaker would become Acting President at this point, but this whole scenario has arisen from Mike Johnson’s failure to secure re-election. His previous term as Speaker having already expired, he also could not become Acting President.

Now, the Pro Tempore position must be checked. This is normally the most senior member of the party controlling the Senate, so this would presumably be Chuck Grassley of Iowa. However, he is already 91 as of the writing of this Observation topic. If something were to happen to him before January 20, then next in line for Pro Tempore would be Mitch McConnell of Kentucky, himself already 82 and known to have a history of health problems. In the event something happens to both Grassley and McConnell before January 20, then next in line after that is Susan Collins of Maine.

It could get even more complicated if something happens to the Pro Tempore after January 20 instead of before (suffice it to say, all of the scenarios resulting from this are likely nightmare scenarios for anyone likely to use this forum), or during the brief period between the Speakership Vote resolving and the Congressional Count and subsequent Inauguration finally happening (as Mike Johnson, if he were to become Speaker as most would expect at this point, would likely then suddenly supersede Chuck Grassley).

Exploration of this scenario should demonstrate the possible danger. An incoming President should not be made to wait to be inaugurated by a House that cannot decide on a Speaker.

2

Can you reference anything that states the current Speaker does not continue as Speaker until a new one is elected? Per my research there is a statement that implies he stays there until the election is done.

“Upon election, the new speaker is sworn in by the dean of the United States House of Representatives, the chamber’s longest-serving member. Additionally, it is customary for the outgoing speaker, or the minority leader, to hand the speaker’s gavel to the new speaker, as a mark of the peaceful transition of power.”

Also, there maybe a way to use House rule I clause 8(b)(3) that requires a Speaker pro tempore serve as the leader, at least nominally, of the House after the election. The Speaker pro tempore may serve for weeks or months before a new Speaker is chosen.

3

We have the previous regular Speakership Vote to use as precedent here. It was not Pelosi, who had previously occupied the position of Speaker, but Clerk of the House Cheryl Johnson who presided over the vote (as is typical during regular Speakership Votes because Pelosi’s term as speaker had already expired). The custom of the gavel handover is merely that, a custom. Even if Pelosi had handed over the gavel to McCarthy herself, it would not have implied that Pelosi was still speaker at that time: she indeed was not. Yet, she was not even the one to hand over the gavel: that was instead Hakeem Jeffries, her replacement as party leader in the House.

As for a Speaker Pro Tempore, I believe you are likely thinking of the special Speakership Vote following McCarthy’s ouster as Speaker, when there was indeed a Speaker Pro Tempore. However, this is an example of the difference between a regular and a special Speakership Vote. Because a special Speakership Vote happens after a Speaker is ousted, there is a Speaker Pro Tempore (chosen per the list left behind by the outgoing Speaker). However, this cannot happen for a regular Speakership Vote because there has not yet been a Speaker during the current term to draw up such a list.