The coronavirus has changed most things in society. And the creation of the House of Representatives for the start of the 117th Congress in January is no different.
The epidemic could drastically affect how the House keeps its opening day and swears to members.
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According to the Constitution, the new Congress is due to begin at noon on January 3rd. However, Amendment 20 to the Constitution will allow the previous Congress to move the day if it makes a new law to do so.
For example, January 3 fell on a Saturday in 2015. So the 114th Congress only started on January 6, 2015, after Congress passed the law. It falls on Sunday, January 3, 2021. But who knows what Congress will do. Even a recent note from J-McGovern, D-Massachusetts, chairman of the House Rules Committee, told members of every House of the 117th Congress that “when the exact date becomes final, we will notify members”.
This is one of the issues to be addressed by the House:
McGovern notes that in order to be sworn in, members must be “physically present”.
That’s a problem.
The House conducted a remote vote back in May over the epidemic. Under the plan, members can essentially “phone” to speak to fellow members on the floor and vote by proxy. Members can only be absent if they belong to a high-risk health category, have a positive coronavirus test, are quarantined themselves, or are caregivers of those who may have health consequences if COVID-19 is bound. Members voting in their absence shall be recorded as if they were there in a chamber of the House.
But you can’t take an oath from a distance from the house.
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Dozens of home Democrats have not darkened the Capitol door for months because of concerns about the coronavirus. But they have to take an oath next year.
Members elected elsewhere have an example of swearing in. To do so, however, the House must first approve a measure that allows members to be sworn in somewhere next to Capitol Hill.
In 1997, late MP Julia Carson and federal judges in Frank Tejada, Texas, were sworn in for illness.
In January 1999, former Representative George Miller of California and Sam Farr of California fell ill. The judges took an oath in California.
In January 2015, several elected members missed the opening day at the House to attend the funeral of Mario Cuomo, New York Governor, Democrats. The House swore to these members when they returned to Washington. But their absence meant that the House of Representatives did not start with 435 members. Remember your words. This will be important. We will return to this in a moment.
In 2011, the elected representative of returning Pete Sessions (R-Texas) and the late Representative Mike Fitzpatrick (R-Penn.) Missed swearing en masse in front of the entire house and attended a reception at the Capitol Visitor Center. The duo raised their right hands as they watched the proceedings on television. But after learning that Sessions and Fitzpatrick had not been sworn properly, the House conducted several roll-call votes, which they took to the floor, and a few days later officially swore to them.
So, there is no doubt that the House can start without people there – even when the pandemic flares up.
Moreover, the first thing the house has to do to start the congress is to call house clerk Cheryl Johnson to order. The House must have a quorum to proceed. In other words, the House must have 218 of the 435 members present. And let us not forget that Democrats must somehow have as many members as possible present to gain a majority. We do not know exactly how many Democrats will be in the party next year in the House. But there will be a narrow majority. Even slimmer after Cedric Richmond, D-La. He resigns from the work of President-elect Joe Biden – and perhaps others.
The provisions on remote voting introduced for the 116th Congress earlier this year will not be automatically passed to the 117th Congress. The entire house must approve a new set of rules to determine how the house will conduct its business. This set of rules undoubtedly includes a provision to restore remote voting for the duration of the pandemic. But everyone has to get there first for these votes – despite health problems.
It will not be easy.
Also, remember what we said about the total number of members of the House? This is of paramount importance in the election of the Speaker. The Speaker of the House needs a straight majority of the entire House – not just the most votes (plurality) to win. Speaker Nancy Pelosi of California lost 15 Democratic votes in January 2019 due to a speaker vote. With a tight majority, Pelosi will not be able to tolerate the defects, close to that number in January.
But it can come down to how big the house actually is on the opening day. Vis-à-vis, how many elected members are displayed.
Former Speaker of the House John Boehner (R-Ohio) benefited from the fact that the House was indeed smaller on the January 2015 opening day because so many members were missing due to Cuomo’s funeral. That day, only 408 members voted for the rapporteur. Thus, the magic number of the victory was 205. Boehner won 216 votes. This is not a straight majority of the whole house. 218 van. But due to absences, the House was incomplete with 435 members. Twelve Republican Dan Webster voted for R-Fla. A lot of other members commanded from three votes to a single vote.
So can it be beneficial for Pelosi if the members really stay away? Doubtful. You can bet that every last Republican will be there – an epidemic or no epidemic – if he thinks there is a way to intervene with Pelosi returning to the rhetoric.
At the Cuomo funeral in 2015, most of the missing Democrats were. This helped Boehner because the Democrats did not vote for him anyway. But Pelosi needs a democratic presence to make sure he returns to the rapporteur’s suite.
And there may be questions about how big the house is on the opening day.
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Section 5 of Article I of the Constitution states that “every house shall be the judge of the election, return and qualification of its members.”
In other words, questions may arise as to who the House is actually occupying – and if it is to the advantage of one party or the other. The House could vote against the incorporation of individual members. And what is balanced is the vote of the Speaker.
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On January 3, 1985, the House rejected the seat of Indian Republican Richard McIntyre instead of Frank McCloskey, D-Ind. In 1997, the House also seated representatives of Loretta Sanchez (D-California) and Vern Buchanan (R-Fla) “without prejudice” despite pending election issues.
So there is a lot to figure out.
It all always depends on the math on Capitol Hill. But this time, the math depends on who actually shows up and how he handles this house in the middle of a pandemic.