Scholars claim that the House can carry out its constitutional duties without a Speaker.

The lingering bad feelings among House Republicans following another messy budget fight could hinder Speaker Mike Johnson’s attempt to keep the gavel in the House — and possibly the formalization of Donald Trump’s victory on Jan. 6.

As the president of the Senate on that particular day, Kamala Harris will preside over a joint meeting of Congress to finish the American presidential election. It’s a constitutional obligation that she oversees the certification of 2024 rival’s resounding victory.

For a professional and swift counting session on Jan. 3, or possibly in the two days following, the House would have to elect a Speaker, who would administer the oath to newly elected and reelected Members.

If a prolonged speaker’s fight continues past 1 p.m., on Jan. 6, there are options available to ensure that the Electoral College vote will be counted and certified that day. This could be difficult after yet another round of GOP squabbles over debt ceiling and government funding, in which Speaker Mike Johnson battled rebellious conservatives.

The drama has raised new questions about the fate of the Louisiana Republican in the next Congress, and whether or not he will be able win the vote on the floor for speaker at the beginning of January.

“One big gray zone”

Johnson, as speaker, will not be able to preside over the counting session on Jan. 6. What happens — or doesn’t happen — the three days prior will be critical.

Steve Smith, professor of political studies and global studies at Arizona State University said that a fight over the speaker would lead to a “big gray area” for the country. The House has a precedent which could determine the outcome of a speaker fight that extends into January 6.

“Nothing happens until the Speaker is elected.” Smith stated that this has been the case since 1789, when the first Congress convened. “Well, it worked perfectly for the first Congress.” “But that could prove problematic in this case.”

Thomas Massie, a Kentucky Republican Rep., has already said that he will not vote for Johnson in the speaker’s election scheduled for Jan. 3. Johnson cannot afford to lose more than a handful of House Republicans in the 119th Congress.

The House Clerk preside over the speaker election, even at the beginning of a new Congress. According to a Congressional Research Service Report, among the first actions the House clerk takes on Jan. 3 is to call a quorum before the House moves to elect a speaker. The clerk will do this with the help of tellers.

Even if the speaker isn’t elected by Jan. 6, several congressional and legal experts told CQ that the clerk could potentially swear all House members in if both sides agree, because the Constitution gives the chamber the exclusive right to organize itself.

Smith said that while there are no precedents in U.S. History to guide House Members through this scenario, they have the authority, to “make up a precedence.”

If that were to be the case, he suggested reaching an agreement whereby “the clerk would organize the House, and allow the count of Jan. 6, speaker or not speaker, to proceed.”

Professor Derek Muller of the University of Notre Dame Law School said that the Constitution gave the House the power to organize itself. This would allow members to have enough legal wiggle-room to find a solution to what would be a unique situation.

Muller explained that “they could elect a temporary or acting speaker with the provision that the whole House would revisit the issue of a permanent Speaker in X number of days.”

Joint session without speaker

Justin Levitt is a professor of law at Loyola Marymount University and former senior policy advisor for democracy and voting in the Biden White House. He believes the joint session that counts the electoral votes could likely proceed without the presence of a speaker.

Levitt explained that the speaker will have two formal roles in January: selecting the two tellers to read out the votes, and overseeing any debates about objections to the Electoral College vote.

Levitt stated that the teller part could be handled either by majority vote or by unanimous consent. Levitt also said objections were unlikely to be sustained under the new higher threshold established by 2022’s overhaul of the law governing presidential electoral votes. The Electoral Count Reform Act was enacted in response to the attack on Capitol Hill that occurred Jan. 6, 2021. It outlined specific procedures regarding presidential election certification and challenges.

Levitt said that while the regular House can’t function without a Speaker, it’s a completely different body – constitutionally – when it comes to a joint session for the counting of votes.

Levitt stated that “I do not think there is a constitutional issue which would prevent members from proceeding with the election count if they can’t work independently without electing a Speaker.”

In addition, the House and Senate also pass a simultaneous resolution to join the joint session, laying out the procedures that they will follow. Levitt noted that the same procedures were also laid out in 2022’s electoral count law. Harris could use the statute for the count.

Levitt stated that the Senate and House are all you need to form a Constitution, as well as the vice president who is currently the president of Senate.

Sarah Binder is a political science professor at George Washington University. She believes that there’s a “technical way to do it” which begins with “general parliamentary laws.”

“That is what guides the House, before it elects and adopts the speaker’s rules package. Binder said that the rules are amorphous. Binder said that the House Practice Manual could also be used as a guide to help the joint session proceed.

Binder explained that under this option “the clerk would be given procedural authority” but added that the “clearest option”, if there is political will, would be to elect a temporary Speaker.

All experts interviewed were in agreement that the best choice would be to elect a speaker on January 3. They said that the biggest force to make this happen would be political pressure.

Muller stated that “they would, particularly the Republicans, be under tremendous pressure to elect a candidate for speaker and select him or her.” Trump would apply that pressure as soon as it was a matter of whether he won the election.