What if no Speaker is elected by Jan 6th after a presidential election?

Question

By law, January 6th is the date on which a joint session of Congress meets in the House chambers to count the electoral votes cast for the presidential election, and certify the results.

What if on January 3rd (of the year after a presidential election) the House convenes, fails to elect a Speaker like in 1855, 1923 and 2023, and the situation remains until January 6th?

I suppose the lame-duck VP is enough to preside over the reunion of Congress, and no Speaker being seated at his or her side will be inconsequent. But since there are no Representatives (only Representative-elects until the Speaker swears them in), would the joint session consist only on the Senators on the House floor?

If not, and if the joint session considers an objection to the count of electoral votes, the chambers are supposed to split and consider it separately. When the House convenes separately, will it be required to vote on the Speakership, in accordance with the rule saying that's the priority?

If not, and I assume the clerk continues presiding, what rules will govern the speeches made on the floor, if any, before the vote on sustaining the objection?

Answer 1

If it goes on long enough, things get very weird.

The 12th Amendment provides (in part) as follows:

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

That's the "happy path" (i.e. what happens when everything is working correctly). It then goes on to provide a very similar process for electing the Vice President, except that the "no majority" contingent election is conducted differently (it's the Senate instead of the House, and they only get to vote for the top two instead of the top three). Obviously, you can't hold a session "in the presence of the [...] House of Representatives" if no one has been sworn in as a member of said House, so it is impossible to comply with this provision of the Constitution until a Speaker is elected.

Even if we want to make the argument that the House consists of zero members, and so zero members need to be present, this loophole is forbidden by 2 USC 25, which states that the Speaker must be chosen, and all members sworn in, "previous to entering on any other business." The 12th Amendment vote-counting process would certainly count as "other business."

Here's what the 20th Amendment says about the "sad path" (when things are not working correctly):

If, at the time fixed for the beginning of the term of the President [i.e. noon on January 20], the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Congress has, fortunately, passed legislation which implements the boldfaced term. Unfortunately, it's a bit of a patchwork mess. If no VP can be selected, again because the joint session can't be held, then the Presidential Succession Act provides for the following order of succession:

1. The Speaker, who (by assumption) hasn't been elected yet.
2. The President pro tempore of the Senate. By convention, this is the most senior member of the majority party in the Senate. This person would resign their Senate seat to serve in the executive branch, because the Constitution forbids simultaneously holding a Congressional seat.
3. The cabinet secretaries, in the order their departments were established. This is unlikely to come into play unless the Senate is also having some sort of crisis, or the President pro tempore does not meet the Constitutional requirements to act as President (35 years of age, 14 years of US residency, and a natural-born citizen).

Once both an Acting President and a Speaker have been chosen, they would finally hold the joint session and certify the "real" President, who would immediately take over from the Acting President. The former President pro tempore would no longer serve in the Senate, but it's possible that the governor of their state would reappoint them to their old seat, depending on the vagaries of state law and the party in power. In most states, this would force a special election either shortly after the appointment or at the next election cycle.

Answer 2

As there is no precedent, we cannot definitively answer the question.

However, it seems that the distinction between "Members" and "Members-elect" of the House of Representatives does not matter as far as certifying the results of a presidential election is concerned. Thus, I think that, if the situation arose, the count on January 6 would likely proceed as normal without a Speaker.

Let's look at the basis for the distinction between Members and Members-elect:

The Rules of the House of Representatives (page 163) has the following to say on the matter.

The status of a Member-elect under the Constitution undoubtedly differs greatly from the status of a Member-elect under the law of Parliament. In various inquiries by committees of the House this question has been examined, with the conclusions that a Member-elect becomes a Member from the very beginning of the term to which elected

In terms of swearing in Members, 2 U.S.C. § 25 says

At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any Member of the House of Representatives to the Speaker; and by the Speaker to all the Members and Delegates present, and to the Clerk, previous to entering on any other business; and to the Members and Delegates who afterward appear, previous to their taking their seats.

If we are to accept that Members-elect are not Members, then this statute makes no sense: How can a Member of the House of Representatives administer the oath of office to the Speaker if there are no Members prior to the Speaker swearing them in?

The 20th Amendment is pretty clear too:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

In particular, it does not say that the terms of Representatives begin after they are sworn in.

Thus it seems that the distinction between Members and Members-elect is not material to the Electoral Count Act which governs the certification of Presidential election results.

The Electoral Count Act stipluates that, when the two houses of Congress meet on January 6, "the President of the Senate shall be their presiding officer" -- i.e., the outgoing Vice President presides, not the Speaker.

The only role for the Speaker under the Electoral Count Act is in handling objections:

When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision

If no objections are raised, then this is not a problem, but it becomes unclear what happens if objections are raised.

Interestingly, the Electoral Count Act was amended last week and it added the following requirements for objections to be considered:

No objection or other question arising in the matter shall be in order unless the objection or question ... is signed by at least one-fifth of the Senators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn

If no Members of the House of Representatives have been sworn in, it seems they cannot sign an objection. If that means no objections can be considered, then the role of the Speaker is moot! (Although this last point is potentially unclear. It could also be interpreted that if no Members have been sworn in then one-fifth of zero is zero, so no Members are required to support an objection.)

---

Aside: Until the early 20th century, the Speaker of the House of Representatives was elected before the start of the congressional term. Thus, historically, the votes for Speaker were indeed cast by Members-elect who were truly not yet Members. I suspect that the current usage of the term "Member-elect" to refer to current Members is a legacy of this historical practice, rather than a meaningful legal distinction.

Answer 3

The elections will continue until a speaker is elected as there is little else it can do until then. Almost everything that the house does depends on a speaker being elected.

House Speaker election explained: What to know

But the House will be able to do little else. Until a Speaker is elected, it can’t adopt a rules package governing procedure in the House. For House Republicans, uncertainty about the Speaker election has led to a delay in the conference choosing contested committee chairs.

Speaker Elections Decided by Multiple Ballots

The longest one took multiple months and 133 ballots to be deicded.

House procedures

Until a Member-elect has subscribed to the oath, he does not enjoy all the rights and prerogatives of a Member of Congress. Deschler Ch 2 Sec. 2.1. Members who have not taken the oath are not entitled to vote or to introduce bills. Manual Sec. 300; 8 Cannon Sec. 3122 However, unsworn Members have participated at the beginning of a session in organizational business, such as the election of the Speaker. 1 Hinds Sec. 224. Although a Member has been named to a committee before taking the oath, under the modern practice the election of such a Member to a standing committee may be made effective only upon being sworn. 4 Hinds Sec. 4483; 106-1, H. Res. 6, Jan. 6, 1999, p ____.

In the early practice of the House, it was the custom to administer the oath by State delegations. Beginning with the 71st Congress, however, Members-elect have been sworn in en masse. 6 Cannon Sec. 8. Under this practice the Speaker administers the oath of office to all Members-elect at one time on opening day, although a Memberelect whose right to take the oath has been challenged may be asked to stand aside. Manual Sec. 202. A Member-elect who does not take the oath of office on opening day may appear later in the well, in response to the Speaker's invitation, and take the oath. Deschler Ch 2 Sec. 5.14. The Speaker also administers the oath to Delegates-elect, the Resident Commissioner from Puerto Rico, and Members-elect elected to fill vacancies. Deschler Ch 2 Sec. Sec. 3.6, 5.