In a nondescript office a few floors above the cafeteria and a Dunkin’ in the Longworth U.S. House Office Building, Democratic staffers on a low-profile U.S. House committee have been gaming out what they say are some political nightmare scenarios.
They’re discussing the perils of Jan. 6. But not Jan. 6, 2021.
Democrats on the House Committee on Administration, which has oversight of the U.S. Capitol campus and federal election laws, have been meeting and designing a plan against any attempt to interfere with the Electoral College certification on Jan. 6, 2025.
One vulnerability is proving particularly difficult to measure: What happens if the U.S. House fails to select a speaker by Jan. 6, 2025? It wasn’t an issue in 2021.
But the uncommon scenario happened just two years ago, amid an internal Republican battle over who should lead the party in the House after the midterm elections.
The standoff paralyzed most of the operations of the House for days. A recurrence after this year’s elections could add a fog of uncertainty and risk to how Congress will certify the winner of the presidential race on Jan. 6, 2025 when it reconvenes to begin the year.
The new Congress will be seated Jan 3, 2025, days before Jan. 6.
“Those are the types of questions we are exploring,” Rep. Joe Morelle, a New York Democrat who serves as ranking member on the House Administration Committee, told CBS News. Morelle said the panel’s Democrats are researching precedent and undertaking tabletop exercises to prepare for efforts by supporters of former President Donald Trump to use such a scenario to overturn election results.
Morelle told CBS News, “I don’t want to get into a lot of specifics because it’s pretty sensitive. And frankly, I don’t want to give people ideas.”
A group of constitutional law experts told CBS News there’s no specific prescription for such a political standoff in the Constitution itself.
“The Constitution assumed a certain level of normality in our politics. But ‘normal’ may not describe our current politics,” said University of Maryland constitutional law professor Mark Graber.
Graber, who authored the 2013 book “A New Introduction to American Constitutionalism,” told CBS News the drafters of the Constitution likely “assumed Congress would get organized and elect its officers,” he said. “What happens if Congress can’t get organized? We really don’t know.”
“I don’t think whether there’s a speaker or not is going to or should upend the (Jan. 6) process,” Paul Berman, a law professor at the George Washington University, told CBS News. “The rules of the House shouldn’t overrun a constitutional mandate.”
“The 12th Amendment of the Constitution requires Congress to certify the vote,” Berman said. But it’s unclear whether a House speaker must be chosen — or formal House rules be approved — for the House to fulfill its responsibility.
Congress sought to eliminate some of the uncertainty and potential vulnerabilities surrounding the Jan. 6 electoral certification process by passing a law in 2022 to tighten standards and codify some of the rules of the process.
The law reaffirms that the vice president’s role in the process of counting the electoral votes is “ministerial” and that he or she has no power to reject electors or resolve disputes about the electors.
The law also raised the threshold necessary for dissenters in the House and Senate to formally object to the electors submitted by states on Jan. 6. Instead of permitting a single member of each chamber of Congress to object to a state’s electors, one-fifth of the House and Senate must vote to do so.
Sen. Amy Klobuchar, a Minnesota Democrat who chairs the Senate Rules Committee and helped draft the law, told CBS News the Electoral Count Reform Act prevents “the electoral count process from once again being used as a trigger point in an insurrection and to ensure that the votes for President accurately reflect the election results in each state.”
Supporters of the new law, including the Washington, D.C.-based Campaign Legal Center, have argued that the House speaker has no meaningful role in certifying the presidential election, which should insulate the process on Jan. 6, 2025.
But some Democrats told CBS News they fear that any uncertainty can be exploited, and point to a failure to prepare for subterfuge on Jan. 6, 2021.
Some of the dynamics that stalled House action in 2023 are at risk of recurring. Election forecasts and polling indicate the majority in the House could be very narrow again in 2025, after the 2024 elections — the margin was 221-212 at the beginning of the 118th Congress in January 2023. A very slim majority increases the risk of a protracted House speaker leadership battle and standoff.
Raskin said, “There are undoubtedly lots of things that we will want to be prepared for out of an abundance of caution.”
Morelle said the meetings and research are ongoing in his committee’s offices. He told CBS News the panel’s Democrats want “to make sure that none of the challenges we had last time are present and that we’re thinking about eventualities.”
