So, here’s what happens when a new Congress begins, in rather excruciating detail:
Although no officers of the House will have been elected when the House first convenes, officers from the previous Congress perform certain functions. The previous Clerk of the House calls the House to order and presides over the chamber until the Speaker is elected and sworn in. In the absence of the Clerk, the Sergeant at Arms performs this duty.
After the Clerk calls the Representatives-elect to order, the Chaplain offers a prayer. The Clerk leads the Members-elect and their guests in reciting the Pledge of Allegiance. The Clerk then directs a reading clerk to call the roll of all Members-elect to establish that a quorum is present. In current practice, the roll is not called by a clerk; rather, the Members-elect record their presence by inserting their official voting cards (obtained prior to or on opening day) in the chamber's electronic voting machines. Once the call of the roll is completed, a majority having registered their names, a quorum (218, if no vacancies) is indicated. This action fulfills the requirements of Article I, Section 5 of the Constitution that a quorum be present to conduct business.
The Clerk then announces the election of the Resident Commissioner from Puerto Rico (when applicable, since the Resident Commissioner's term is four years) and of the Delegates—one person from the District of Columbia and one person from each of the territories of Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and American Samoa. The Clerk also reports any deaths or resignations since the election.
A quorum being present, the first order of official business is the election of the Speaker of the House of Representatives.
Election of the Speaker12
The candidates for Speaker are nominated from the floor by the leaders of their respective parties. Traditionally, there is one candidate from the majority party and one from the minority party, selected by the Republican Conference and the Democratic Caucus at their early organizational meetings. Individual Members-elect may place other names in nomination. Nominations are followed immediately by a "viva voce" roll-call vote, that is, a vote in which the Members-elect respond orally to the calling of their names. In this vote, the Members-elect call out the last name of their choice for Speaker when their names are called by a reading clerk. The Clerk appoints Members-elect to serve as majority and minority tellers, usually two each, to ascertain the vote. The Speaker is elected by a majority, not a plurality, of votes cast by Members-elect. So long as nearly all the majority party's members vote for its candidate, the majority party can assure its candidate's election because the vote is likely to be almost exclusively along party lines. The candidates themselves, however, sometimes vote "present" or do not vote.
You can see all of that assumes an accepted set of new representatives, which includes re-elected incumbents, and the newly elected. They are all, at this point, “new.”But certification
precedes seating the new Congress:Importantly, certification is not optional; it is mandatory and must be completed by the deadlines established by law. If an election official fails to certify, they can be compelled to do so by a court order.
Likewise, certification is not an opportunity to question results or attempt to resolve any potential issues or irregularities. Depending on state rules and the closeness of the race, recounts, audits or court challenges may occur before certification to address those concerns. But once the certification step is reached, it is the duty of state or local officials to simply provide an official certificate naming the winner based on the official tally.
What happens after certification?
For congressional elections, certification establishes who has won races for the U.S. House of Representatives and the U.S. Senate. Each state then sends its list of election winners, formally known as certificates of election, to the House and Senate. In the House, these certificates are specifically sent to the clerk, a nonpartisan official who compiles the state lists into the full roll of members-elect of the next Congress. The winning candidates then begin preparing to take office.
Okay, now let's look at
the law:Before the first meeting of each Congress the Clerk of the next preceding House of Representatives shall make a roll of the Representatives-elect, and place thereon the names of those persons, and of such persons only, whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States. In case of a vacancy in the office of Clerk of the House of Representatives, or of the absence or inability of the Clerk to discharge the duties imposed on him by law or custom relative to the preparation of the roll of Representatives or the organization of the House, those duties shall devolve on the Sergeant at Arms of the next preceding House of Representatives.
That’s the statute behind the details of the procedure above. "Shall,” there, is a very specific word. It means the act of the clerk, or the Sergeant at Arms, is ministerial. It is not subject to judgement or consideration, except insofar as state certification is lacking. And then the clerk must seek certification from the appropriate state. But everyone else is seated.
Now, if the clerk refuses to seat all the Democrats; or just all the new Democrats? (Or just everyone, to be “fair”?) Well, shit hits the fan. Arguably, Congress can’t operate. Representatives could challenge the quorum call; and the courts (presumably the D.C. Circuit) could order the clerk, or the sergeant at arms, to do their ministerial duty.(This would not be interference with House rules and operations. There’s a federal statute to enforce. The clerk and the sergeant at arms are employees of the House, not elected officials.)
And then the majority sets about punishing anyone in the minority who thought this was a clever idea.
Remember, Trump is a lame duck now. So why would Johnson pursue this Pyrrhic victory? To make life even more miserable for the House, and Trump, for the next two years?
Yes, Trump sent a crowd to the Capitol to disrupt the certification of Biden as President. What happened? Nothing Trump wanted. What happens if Trump persuades Johnson to put in a crooked clerk? More serious and immediate payback than he faced in 2021. Maybe even removal. I don’t think Congress
will be happy to see its prerogatives interfered with.
