December 14, 2020

The 117th Congress’ First Day of School

Marty Paone, Zack Marshall

The elections are behind us (except for, you know, those two Georgia runoffs and a still yet-to-be-called race in upstate New York) now, and we’re only a few days away from the start of the 117th Congress kicking off.  Much like the first day of school (virtual or otherwise these days), there’s a lot that goes on and it can make for a busy and dramatic day.  Sections one and two of the Twentieth Amendment to the U.S. Constitution set January 3rd at noon as the end of one Congress and the beginning of a new one.

In our years on Capitol Hill, we’ve seen many a first day flurry of activity on Capitol Hill.  Members, new and old alike, open their doors to supporters and constituents, basking in the glow of pomp and circumstance.  Freshmen wander around trying to remember how to get from one building to the next via the Capitol complex’s underground tunnels.  Obviously, this January 3rd will look different than those past – well, there will still be plenty of lost new members – but we will still see the same procedural activities take place that welcome in a new Congress.  We’re going to walk you through a typical first day, so you have an idea of what to expect as the 117th Congress begins.

This upcoming January 3rd is a Sunday.  The last time January 3rd fell on a weekend was in 2015, but in the lame duck session of the 113th Congress, legislators passed a resolution kicking the convening day of the 114th Congress to January 6th, a Tuesday, which the Constitution allows and has been rather commonplace the past quarter-century.  This time around, however, members will make their way to DC to be sworn in on a Sunday.  In fact, we understand that the Attending Physician is suggesting that Members and Members-elect travel back to Washington right after Christmas to ensure they can be tested and quarantined to stay healthy enough for January 3rd.  Though, with the ongoing negotiations on another COVID relief package and government funding bill still up in the air, Members may already still be in town opening presents and drinking eggnog, having never gone back home to begin with.

In the House, once noon has passed, the Speaker position is vacated, and all members must be sworn in.  The current Clerk of the House presides over the chamber and will call the Members-elect to order.  The House Chaplain will lead the group in prayer and the Clerk will then lead the Pledge of Allegiance.  Then the fun starts.

Article I, Section 5 of the Constitution requires that a quorum be present to conduct business, so the first thing to happen is that the Clerk will order a quorum call.  Members-elect will use their newly acquired voting cards to record themselves present.  At the conclusion of that “vote,” assuming a minimum 218 Members-elect are present, the Clerk will announce the election of Puerto Rico’s Resident Commissioner and the Delegates from DC, Guam, the U.S. Virgin Islands, American Samoa, and the Northern Mariana Islands.  Should there be any deaths or resignations since the election, the Clerk will announce those as well.

The Clerk then leads the House in its first official action of a new Congress – the election of the Speaker of the House.  During the Lame Duck, each party elects the leader of their party to represent them in the Speaker vote.  Those votes only require a majority of their Caucus/Conference.  There is some theater on the House floor on January 3rd as the chairs of the Democratic Caucus and Republican Conference nominate their candidate for Speaker.  The Clerk will then appoint a few Members-elect as tellers to serve as vote counters.  The Clerk then begins what is typically the only member-by-member verbal vote of a Congress.  The Clerk reads off the name of each Member-elect, alphabetically, the Member-elect then casts their vote, voicing who they would like to see as Speaker of the House.

While those who were nominated were chosen during the Lame Duck session of the preceding Congress, Members can voice any name they want to serve as Speaker – or vote “present.”  Those names don’t even need to be Members-elect.  Literally any person qualified to serve in Congress can be the Speaker of the House.  Zack worked for Rep. Jim Cooper in 2013 when Cooper voted for Colin Powell – Cooper received a pair of votes himself that year.  That said, Members-elect must vote for a person or vote present.  In 2019, Rep.-elect Jeff Van Drew of New Jersey initially voted “no,” briefly causing some confusion before eventually changing his vote to “present.”  As Members-elect are casting their votes, it’s common for some glowing remarks to be made regarding the person earning their vote.

Once all the Members-elect have been given a chance to vote, the tellers tally the votes.  The Member-elect with the majority of votes cast – not including those who voted “present” – is elected Speaker.  It is common these days for a few Members to cast votes for someone other than the person selected by their Caucus/Conference as a show of independence (much like Rep. Cooper did in the example above), but there’s not typically much of a surprise in who wins the Speakership – the leader of the majority party.  While House Democrats have a much smaller majority than they did last Congress, we expect Speaker Pelosi to maintain her speakership in the 117th Congress, as many of those that voted against her in 2019 are either not returning to Congress or have – as Rep. Cooper has – voiced their support for her this time around.  That said, we still expect some “present” votes being cast.

The Speaker-elect then addresses the full House, before being sworn in by the Dean of the House (the House’s longest-serving member).  After the Speaker has taken the oath of office, they then will swear in all of the Members, en masse.  After all of the procedural votes are done, the Speaker allows for Members to join the Speaker for ceremonial swearing in photo-ops with family and staff – though, this year may not look the same for COVID reasons.

The Speaker will then recognize the chairs of the Democratic Caucus and Republican Conference, so they can announce who will serve as Majority Leader and Minority Leader.  The Speaker then proceeds to a resolution electing administrative officers such as the Clerk, chaplain, and the Sergeant at Arms.  Next, the House adopts a rule package.

The Constitution allows each chamber to set their own rules governing procedures in each chamber.  During the Lame Duck, both parties come up with changes to the House Rules that they want to see.  Come January 3rd, the Speaker will put forth a resolution that sets forth the House Rules for that Congress.  It typically only provides for changes to the existing rules package.  Just like any other resolution, there is debate and the minority offers an amendment with the rules they would like to see adopted.  Once all time on debate has expired, the House will vote on the rules package.  Following that vote, the Speaker will adopt a series of other administrative resolutions and policies related to the House decorum and legislative protocols.

Meanwhile, in the Senate, many of the same procedures are taking place.  The Senate is busy with their own convening, praying, allegiance pledging, swearing in of new members, and housekeeping items.  However, there are some differences between the two bodies.  Of the many differences between the Senate and the House, the Senate is seen as a continuous body – only one third of their members are elected every two years, so the other two thirds of the body remains.  Therefore, the Senate doesn’t pass a new package of rules every two years like the House does.  Also, since there is no Speaker position to fill, those theatrics do not take place. The election of the Majority and Minority Leaders will have already taken place in their respective party conference meetings. Vice President Pence will preside over the Senate and recognize Senator McConnell as Majority Leader. The Georgia Senate races on January 5 and the inauguration of Vice President Harris on January 20 could result in a later switching of titles for Senator McConnell and Senator Schumer. Should the Democrats win both Georgia seats, the Senate would also pass a Resolution appointing a new President Pro Tempore which goes to the most senior member of the majority party. Senator Grassley currently serves in that position. It places him in the Presidential line of succession behind the Vice President and the Speaker of the House.

Meanwhile the housekeeping matters of the beginning of a new Congress will be addressed on January 3rd.  Senators who have been reelected and newly elected ones will be sworn in by Vice President Pence. They will be called up in groups of four in alphabetical order according to their names.

Once that is completed, a quorum call will occur. Once the quorum is established, they will pass resolutions notifying the President and the House that the Senate has a quorum and is ready for business. A few more housekeeping items are completed like setting the time for convening at noon each day for the upcoming Congress. This time-setting is changed daily by unanimous consent, but setting it now is useful for parliamentary reasons.

Several standing orders that remain in effect for the duration of the Congress are granted by unanimous consent, covering such areas as guaranteed time for the two Leaders to speak each morning, time for roll call votes, among others.

The most important housekeeping item is often not ready for opening day and this year is no exception. That is the organizing resolution, which gives new Senators their committee assignments, moves senior ones from one committee to another and establishes new Committee Chairmen and Ranking Members, if there are any changes in those positions. This year, the Senate will await the Georgia elections results to do that resolution.

So, while many of us are still recovering from New Year’s Eve and already breaking their New Year’s resolutions, the House and Senate are busy fulfilling their Constitutional duties and preparing to embark upon a brand-new session of legislating.  But wait, there’s more!  Every four years, Congress – after a few days of rest – convenes in a joint session to count the electoral votes and declare a winner in the previous November’s presidential election. This upcoming Congress will be conducting this important business on January 6 – we’ll have more on that later, so stay tuned.