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In the January 2023 crisis over electing Speaker of the House in the U.S., usually one of the first things mentioned in any coverage is that without a Speaker, "House members can't even be sworn in". E.g., at ABC News:

The House can conduct no other business -- and members can't be sworn in -- until a speaker is chosen.

However, almost all of the House members, including newly-elected members, appear to be present, seated, and voting in the current Speaker election cycle. E.g., each of the first seven rounds of voting for Speaker in 2023 had 434 votes cast (including "present" votes, per NY Times), which is only one less than the full Congressional membership (Wikipedia).

This SE Politics Q&A seems to give competing clues on the issue. The question asserts that the Clerk "convenes" the new Congress on Jan-3. The selected answer seems to support this, citing House rules that say the Clerk "shall call the Members... to order". But the second answer cites a SCOTUS case in which the creation of a Congress and its processes are dependent on members having "taken the oath, been sworn, and entered upon the rolls".

The U.S. Constitution (Article I) seems to have little to nothing on the details of these procedures, the only nearly-relevant parts being (Sections 2 and 4):

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment... The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

And from Article VI:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

So: What exactly can elected members of Congress do prior to being "sworn in" -- and what is different that they can only do after being "sworn in"? (Also, secondarily: What is the criteria for the first part, i.e., exactly what triggers members of the House to be active-but-not-sworn-in, and when does that occur?) Citations to the Constitution, law, or official House procedure documents for a best selected answer.

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  • What exactly can elected members of Congress do prior to being "sworn in": I'm assuming you mean the House of Representatives rather than Congress (which includes the Senate, 2/3 of whose members have previously been sworn in). If that's the case, the answer is almost nothing. The members-elect can vote for the Speaker of the House, and that's it.
    – David Hammen
    Jan 6 at 0:10

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Congress rules have the following to say on this subject (I've removed the references for readability):

§ 27. Election of a Speaker

The Speaker, who was at first elected by ballot, has been chosen viva voce by surname in response to a call of the roll since 1839. The Speaker is elected by a majority of Members-elect voting by surname, a quorum being present. Because the House is composed of Members elected by the people of the several States, and because the House elects its Speaker, the Delegates-elect and the Resident Commissioner from Puerto Rico are not constitutionally qualified to vote in the House for Speaker. The Clerk appoints tellers for this election. Ultimately, the House, and not the Clerk, decides by what method it shall elect the Speaker. On two occasions, by special rules, Speakers were chosen by a plurality of votes; but in each case the House by majority vote adopted a resolution declaring the result. The House has declined to choose a Speaker by lot.

I couldn't find a more detailed discussion of what other privileges "members-elect" have but there's precedent of them voting for Speaker since at least 1839.

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  • The House precedents and rules (some of which go back to England's Parliament) make it so that voting for the Speaker is the only thing that members-elect can do. Prior to being sworn in, committee assignments cannot be made, and of course the members-elect cannot receive classified information as they have not yet sworn an oath of loyalty to the country. I don't quite understand why it has to be the Speaker who performs the swearing-in, but that's what the precedents and rules specify.
    – David Hammen
    Jan 5 at 23:46
  • Thanks. I think a better answer would include @DavidHammen's explicit observation that, "voting for the Speaker is the only thing that members-elect can do" -- if that's true and has some evidence for it. (And maybe how members-elect are recognized.)
    – Daniel R. Collins
    Jan 6 at 4:32
  • There are a couple of other thing that members-elect can do, which are to move to and adjourn and vote on that motion.
    – David Hammen
    Jan 6 at 13:07
  • And one more thing: A member-elect can challenge the swearing in of another member-elect. The unchallenged members-elect are sworn in, and then the body decides what to do with the matter. This happened at least once, when member-elect Richard McIntyre's swearing in was challenged in 1985 due to an ongoing recount. He eventually was not seated.
    – David Hammen
    Jan 7 at 19:13
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Q: What exactly can elected members of Congress do prior to being "sworn in" -- and what is different that they can only do after being "sworn in"? (Also, secondarily: What is the criteria for the first part, i.e., exactly what triggers members of the House to be active-but-not-sworn-in, and when does that occur?) Citations to the Constitution, law, or official House procedure documents ....

Constitution Article I:

Section 5, Clause 1: "Each House shall ..., and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, ..."

Section 5, Clause 2: "Each House may determine the Rules of its Proceedings, ..."

Section 2, Clause 5: "The House of Representatives shall chuse their Speaker and other Officers; ..."

Once a quorum has been established, the House may choose their Speaker and determine the rules of its proceedings. Neither of those is predicated upon having taken an oath or affirmation "to support the Constitution" given in the House. After being sworn-in, the House may consider legislation, resolutions, etc., that have an effect beyond the choosing of the speaker and rules of its proceedings.

From the Annals of Congress, 1st Congress, 1st Session, March 4, 1789:

The first meeting was held March 4th, and was immediately adjourned for lack of a quorum. This continued for several meetings until, on April 1st, a quorum was established. Whereupon the members chose their speaker and clerk.

April 2nd: A committee was appointed to prepare rules of proceeding.

April 4th: A doorkeeper and assistant were appointed, as officers.

April 6th: A bill "to regulate the taking the oath or affirmation prescribed by the sixth article of the Constitution" was introduced.

April 7th: The committee on rules submitted the standing rules for the House.

April 8th: The Chief Justice of the State of New York "attended, ..., and administered the oath required by the constitution, in the form agreed to on Monday last, first to Mr. Speaker in his place, and then to the other members of the House present, ..."

The formalities having been completed, the "House resolved itself into a Committee of the Whole House on the state of the Union" and turned its attention to "duties on imposts". [1]

Constitution Article VI:

Clause 3: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ..."

10 U.S. Code § 502 - Enlistment oath: ...

(a)Enlistment Oath.—
Each person enlisting in an armed force shall take the following oath:
“I, __________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States ...

I mention these because there is nothing magical that occurs at noon, January 3rd, with the meeting of a new Congress, that causes members-elect to somehow become "unbound" in their obligation to support the Constitution. Returning members, those who previously served as state legislators, or the other officers listed in Article VI and former members of the military remain bound to support the Constitution. For the most part, being sworn-in as a member of the House is a mere formality steeped in tradition.

1 As "imposts" in the original, should be "imports".

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  • Thanks for the language from Article VI on the Oath requirement; I missed that earlier, now added to question. It seems that Constitutional requirement makes it more than just a "mere formality"? And perhaps the answer could be improved with a clear summary of what the rights and responsibilities pre- and post- this step. It's been said in other comments that, "voting for the Speaker is [almost] the only thing that members-elect can do", do that seem right or not?
    – Daniel R. Collins
    Jan 6 at 18:13
  • @DanielR.Collins - I think it is clear, Pre-oath is show up, show credentials, and vote for Speaker when asked. After the oath or affirmation (OoA), follow the rules. In simplified form, rise to be recognized; when recognized, speak then yield the floor; when instructed to vote, do so; etc. The only murky part is between the Speaker taking the chair and the administration of the OoA. One may request leave to use a different wording of the OoA based on religious beliefs.
    – Rick Smith
    Jan 6 at 19:38
  • @DanielR.Collins - In those cases where the choice of Speaker was deadlocked, some members offered resolutions as a means to break the stalemate. These were voted on without the presence of a Speaker to control debate.
    – Rick Smith
    Jan 6 at 19:43
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The House can conduct no other business -- and members can't be sworn in -- until a speaker is chosen.

That's close, but not quite true.

  • Members-elect can make a motion to adjourn during the voting (a motion to adjourn is (almost always) in order), and then vote on that motion. That happened four times between January 3 and January 6 this year. The motion passed on January third, fourth, and fifth, enabling the members-elect the haggle and to get some sleep. The motion failed after the 14th voting attempt failed on January 6. Kevin McCarthy was finally elected as Speaker on the 15th vote.

  • After choosing a Speaker, a member-elect can challenge the swearing-in of another member-elect. The unchallenged members-elect are sworn in, and then the body decides what to do with the matter regarding challenged members-elect. This has happened at least once, when member-elect Richard McIntyre's swearing in was challenged in 1985 due to an ongoing recount. He eventually was not seated.

The House of Representatives is not quite in business as the House until it adopts a set of rules that govern how the House will work for the next two years. That happens after the swearing-in. There are no bills on which elected members can vote as unpassed bills from the previous Congress do not transfer from one legislative session to the next. There are no formal committee or subcommittee assignments yet as making those assignments is one of the first agenda items that is done after the rules have been established.

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  • Technically speaking couldn't the House decide to vote to abolish the requirement to elect a speaker?
    – JonathanReez
    Jan 7 at 23:00
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    It is incorrect to describe members of the house as members-elect because they haven't been sworn in. They become members at noon on January 3rd.
    – phoog
    Jan 7 at 23:04
  • @phoog The documents from the House rules and procedures disagree with you.
    – David Hammen
    Jan 7 at 23:51
  • @JonathanReez Yes, they could, but that would require a constitutional amendment. The requirement that the House shall "chuse" (spelling was different back then) a Speaker is in the constitution. That said, the constitution is moot regarding the roles of a Speaker, but this concept was drawn on how Parliament works. Several of the rules and procedures currently used by the House date back to the rules and procedures used by Parliament.
    – David Hammen
    Jan 7 at 23:55
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    I guess it would take a Supreme Court ruling to decide if choosing a speaker is a pre requisite for doing other business.
    – JonathanReez
    Jan 7 at 23:59

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