Ha ha!  Funny!  Look at the Republicans in disarray who can’t settle on a Speaker of the House with the majority they hold in the House by their fingernails.  We as liberals enjoy the self-inflicted wounds of the opposition.  But imagine if this fuckery happened two years ago, or two years from now when–three days after the new House should open on January 3rd–the entire Congress is supposed to meet to certify the Electoral College count.

Without a Speaker, the members of the House cannot be sworn in, so technically, Congress–or at least the House–will not exist.  The building will still be there, but the body itself will cease to be.  It will become an un-Congress. The House chamber will resemble Donald Trump’s soul or Alex Jones’s future bank account:  empty.  There will literally be no House.

Pretend the recent New Year was to celebrate 2025, not 2023, and the new Republican majority in this timeline still cannot agree on a Speaker because a score of their caucus stomp their feet and have a temper tantrum.  According to law (3 U.S. Code § 15), Congress must hold a joint session on January 6th after a presidential election to certify the Electoral College votes.  But what happens if there is no House?

First, a big caveat:  this is all untrod territory.  This scenario has never happened even during chaotic transitions, so this is all speculation, and there are a lot of conflicting opinions–even in the law and in the Constitution–about how things get down when there’s a breakdown of the Legislative branch.

A few things we need to clarify, and they’re all typically minutia… until they’re not.  Technically, the House certifies the Electoral College vote for President, and the Senate certifies the Electoral College vote for Vice President.  If the House doesn’t meet, the Senate can technically still certify the election of the Vice President.

Something I was rather shocked to discover:  the 12th Amendment to the Constitution says that if the House cannot agree on the certification of a new President, the Vice President certified by the Senate becomes President automatically on March 4th, just as if the President died in office.  So in the very worst circumstance, the Senate can seat a Vice President who would serve as a President pro tem if the House isn’t seated, and who would ascend to the Presidency on March 4th.

Or maybe not.  According to the 20th Amendment, the Vice President serves until the President “shall have qualified.”  There is no established endpoint at which the Vice President becomes the actual President, so the qualification process could go on forever.  For the 20th Amendment’s input, the House continues to vote for a President-elect until a winner is declared and the Vice President is in some sort of Executive branch purgatory, between the Oval Office and the OEOB.

Here’s the thing, though:  in all the research, I’ve not found a single thing that outlines what happens if the House cannot meet.  As mentioned above, the joint session of Congress during which the Electoral College results are certified is set by statute for January 6th.  It’s not a Constitutional mandate. Congress has voted to change the date on a year-to-year basis, specifically when January 6th falls on a Sunday.

Changing the date, however, requires the previous Congress to pass a law to temporarily (or even permanently) change the date of the joint session… but that means the previous Congress could foresee such a clusterfuck as the current Republican clusterfuck at such an early stage that it could pass legislation through both chambers.  Obviously, that option isn’t feasible in the current situation.

Congress could pass legislation that says the joint session must happen three days after Congress gets sworn in, legislation that should a failsafe if the House isn’t in session by January 20th, the inauguration date that actually is specified in the Constitution in the 20th Amendment.

Congress could also pass a law that the first session of the House can be called by an outside third party from a different branch, as the Vice President suspends her duties in the Executive Branch to undertake her role as the President of the Senate.  Perhaps the Chief Justice could be assigned to formally open the first session of a new Congress, thereby ensuring the members are in place even if leadership isn’t.  Because the Vice President presides over the Electoral College certification, a Speaker doesn’t need to be seated except for purely ceremonial duties of welcoming people to the chamber which can be dismissed.

The issues here are both trivial and non-trivial:  trivial because such a scenario isn’t likely to happen, but non-trivial in that there’s a non-zero possibility of it happening, and now an even bigger chance because some Republicans simply want to through our country into any Constitutional crisis they can.   Imagine if this had happened January 3, 2021.  What hell would have happened on the House floor on January 6th?

There may be a solution to this already that some deep-in-the-stacks Constitutional scholars (not named John Eastman) have conferred on, but it’s not something most people–even people deep in politics–have no idea about.  Given that no one knows what it is, such a circumstance will lead to worse chaos than January 6th.

Counterpoint by Spartan: Jack raises a hell of a potential problem here and one definitely deep into “Constitutional crisis” territory, especially if it would come after a contentious presidential election like the one we had in 2020 (Luckily House Democrats hung on that year despite significant gains by Republicans in districts that had swung toward blue in 2018, so Nancy had both years buttoned up).

Just a few hours ago CBS News Congressional reporter Scott MacFarlane, National Zero’s best friend even though he doesn’t know we exist, pointed out this ongoing pattern of odd-numbered-year January clusterfucks proudly brought to you by the MAGA Republican Party:

The 116th Congress began amid a government shutdown

The 117th Congress began amid a raging pandemic

The 118th Congress begins with a standoff in choosing a House Speaker

— Scott MacFarlane (@MacFarlaneNews) January 3, 2023

Somebody, somewhere, a lot smarter than me has definitely written some version of this before, but here goes anyway – Congress tends to move faster and more decisively on fixing shit when it affects them personally. In 2019 when the fat bastard Trump’s wall tantrum shutdown started to cause flight delays because TSA agents weren’t getting paid for 35 days, they got the government funded again real quickly. In 2022, a year after they got stuck in the Capitol for 18 hours (which was going to happen whether or not tens of thousands of MAGA terrorists interrupted it by trying to kill them), they made sure a protracted electoral vote count was never going to happen again.

My point is that we don’t have to worry about there not being a House during the next electoral vote count because this is going to be the last ever Speaker election that is determined by a majority. Once this is finally said and done one way or another, Democrats and enough Republicans are going to work together to change the House rules to allow for a plurality candidate to win the Speakership. I’m not sure sure, but I’m pretty fucking sure that is going to happen now that they’ve wasted one day and God knows how many more days going forward without getting themselves sworn in and going to work (or “work,” like Hunter’s laptop investigating-type “work”).

The majority of votes requirement isn’t in the Constitution, it’ll just require a majority of House members who didn’t like sitting there for hours with their goddamned families there watching and waiting for them to get sworn in only for nothing to happen. Don’t expect it to happen this Speaker election given the current dynamics (despite what a handful of Freedom Caucasians say). But it’s going to happen and January 3, 2025 will see a different one.