Department of Bad Things: Congress Choosing the Next President and a Government Shutdown and Another Speaker Vacated
2024 could just keep 2024-ing
Dan Abrams had me on his radio show yesterday to discuss a contingent presidential election. (Listen here.) He had seen a Hill column I wrote titled, “The Horrific Nightmare Scenario Where Congress Picks Our Next President."
There I expressed my concern over what happens when no candidate gets 270 electroal votes for the presidency. Congress then has to decide. Yes, you read that right. The new House of Representatives would arrive in early January and the Senate would return. The House would need to vote for who gets to be president; the Senate for who gets to be vice president.
But what would this proceeding look like? What are the rules? Sadly, Congress does not have a detailed set of guidelines for how to proceed. Nor have they a shared understanding, which means confusion wil be high and legislaotrs will be inclined to follow nakedly partisan incentives.
Then there’s is this: what if the House proves unable to select a Speaker? What if the Senate ties itself up in knots?
Come January 20th the presidential vacancy and succession act would kick in. Mssr. Biden and Ms. Kamala would leave their offices, then someone would rise to the presidency. If there’s a Speaker, she’s first. If not, then it would be the Senate’s president pro tempore, and so on down the succession line.
Suffice to say, it could be a messy scenario. It seems more probable under a scneario where a third party candidate scores a few votes (e.g., Robert F. Kennedy, Jr. or A No Labels candidate), but it could happen if two caandidates split the electroal votes 269-269.
You might think, “Well, this is really unlikely so it is not worth worrying about.” Let me gently disagree.
In April 2020 I warned that the Electoral Count Act was a problem that needed to be fixed. Congress failed to act, and come January 2021 an intruder in a fur hat with a spear in hand sat in the chair of the Speaker of the House. That had never occured, but there it was.
To my distress, Congress has not given any signs that it is taking action to cretae rules and a shared understanding in the chambers as to how to handle a contingent election. If you thought January 6, 2021 was bad, well, Congress dealing with a contingent election could be even worse.
If that’s not cheerful enough, there is the fraught state of the FY2024 appropriations process. In short, a government shutdown is looming, and along with it is the possibility the Speaker may face a motion to vacate. All the government spending bills expire in the next few weeks, and the House Freedom Caucus recently released a letter that may indicate they are OK with a government shutdown or sequestration.
You can read my tweet thread on that fraught situation here.
Below are some relevant reports on a government shutdown, the start of the new Congress, contested elections, etc.
Congressional Research Service (CRS) explains contingent elections and how Congress might handle them
Protect Democracy on how a contingent election can go bad
CRS on what happens on the first day of a new House of Rperesentatives
CRS on what happens on the first day of the Senate
Matt Glassman explains the motion to vacate the Speaker