The COVID-19 pandemic had already led the House to significantly alter its perfunctory opening day proceedings for the 117th Congress. But Rep.-elect Luke J. Letlow’s death from complications of the virus just five days before the session begins on Sunday sets a somber tone for the normally celebratory day.
The 117th Congress begins at noon Jan. 3, as set by the Constitution. The proceedings will be lengthy due to pandemic precautions, with some aspects, like adoption of the House rules, pushed to the following day because of the time it takes to do anything with members unable to gather all together on the floor. But at some point during the day, there will likely be a moment of silence for Letlow.
The traditional quorum call, speaker election and swearing in of members that kicks off every new Congress will be done in seven groups to provide for social distancing, House Sergeant-at-Arms Paul D. Irving and Capitol Attending Physician Brian P. Monahan said in a memo sent to returning and incoming members Tuesday afternoon.
That means those three events alone will stretch several hours into Sunday evening, at least quadruple the time it takes during pre-pandemic times when all members could gather and stay on the floor.
With those proceedings lasting longer than usual, the House is not expected to consider its rules package on opening day, as is customary.
The rules package will be considered Monday. It was not immediately clear if that would involve one or multiple votes. The package could be broken up into multiple parts to appeal to different constituencies, as was done at the start of the 116th Congress.
COVID-19 restrictions will also limit the number of guests walking around the Capitol complex.
Only freshman members-elect are being given guest tickets — one each — for the House gallery because of the limited space for social distancing. During pre-pandemic times, the gallery and floor on opening day would be filled with hundreds of spouses, significant others, children and other family members seeking to watch their loved ones get sworn in.
The Capitol remains closed to the public, but “official business visitors” are allowed, so members can take advantage of that to have guests on the grounds even if they can’t provide them access to the gallery. SAA and the Capitol physician are advising against gatherings, but it will ultimately be up to members to police themselves and follow safe health guidelines.
“Members are strongly discouraged from hosting any group gatherings or events such as office receptions, welcome receptions, and/or holiday celebration in their office spaces — either in the Capitol or in the House Office Buildings,” the memo said.
The limited guests who are allowed in the Capitol must follow the District of Columbia’s testing and quarantine guidelines for most out of state visitors, which include testing negative prior to travel and three to five days after arriving in Washington, according to the SAA memo. The memo also warns members the District could further modify the restrictions.
The memo provided only a five-day warning that guests would be subject to the District’s testing guidelines and unable to access the same-day tests at the Capitol available to members and staff, so it’s unclear how many guests will have time to meet the prerequisites for attending Sunday’s proceedings.
District testing sites typically take at least 36 hours to produce results and most commercial health care providers aren’t much faster.
Order of proceedings
At noon Sunday when the new session begins, the clerk will call the House to order, the chaplain will offer a prayer and the chair will lead the chamber in the Pledge of Allegiance — as would occur on any normal legislative day.
The proceedings unique to opening day begin with a quorum call to determine how many members are present. The Constitution requires a quorum, or a majority of the chamber, to be present for conducting legislative business.
Opening day, however, is one of the few instances in which an actual quorum call is initiated to establish a majority of members are present; at most other times throughout the two-year session, it’s presumed.
Members will head to the House floor in seven staggered groups, each limited to no more than 72 members so that there’s no mass congregating. Members will use their newly acquired voting cards, which they will pick up from Statuary Hall on Sunday morning before the session starts, to register their “present” votes for the quorum call.
This session’s quorum call will be telling because it will establish how many lawmakers were able to travel to Washington during the pandemic and remain COVID-19 free in the process.
There won’t be 435 members, due to Letlow’s death and a close House race in New York that is still being contested. The New York State Supreme Court is not set to declare a winner in the 22nd District, where former GOP Rep. Claudia Tenney leads Democratic Rep. Anthony Brindisi, before Sunday.
Other absences are likely as some members may have to quarantine. Rep. Gwen Moore, D-Wis., announced Monday that she tested positive for the virus. And Republican member-elect Maria Elvira Salazar of Florida announced Thursday she'd miss the swearing in Sunday after she tested positive. She was admitted to the hospital December 23 but has since returned home to quarantine.
More members could test positive in the coming days. The Capitol physician recommends members follow the spirit of the District’s health guidelines and get tested pre- and post- travel, even though as federal officials they are technically exempt.
Absences are problematic because the swearing in of members can only occur in person, a required step before lawmakers can vote in person or by proxy.
But proxy voting, a new House rule adopted for the pandemic, won’t be available on opening day since there will be a lapse in House rules. There will be at least a 24-hour period in which members will either have to vote in person or not vote until proxy voting is renewed in the rules package for the 117th Congress on Monday.
Rules Chairman Jim McGovern has constantly reminded members of those dynamics in letters and on conference calls in recent weeks.
“I don't take anything for granted here,” the Massachusetts Democrat told CQ Roll Call Dec. 8 about the importance of ensuring members who can show up Jan. 3 in person do so. “I’ve have had people last week saying to me, ‘Oh, I can vote by proxy.’ No, you can’t.”
One of McGovern’s concerns is that the overall attendance number will be a major factor in determining how many votes Nancy Pelosi will need to be reelected speaker, which requires a majority of members who are voting.
Pelosi acknowledged as much on a Democratic Caucus call Monday, expressing confidence that she had the requisite support among her party but that COVID-19 was her “adversary,” according to a source on the call.
Not counting potential absences on opening day, Democrats will start the 117th Congress with 222 members and Republicans with 211 because of Letlow's death and the uncertified New York 22nd District race. Pelosi said Wednesday she would seat Mariannette Miller-Meeks, who was certified as the winner in Iowa’s 2nd District, despite Democrat Rita Hart contesting the results in the House.
Pelosi starts with four-vote cushion for defections in the case of full attendance, but every two absences lowers the majority threshold of 218 by one.
If additional absences are balanced between the parties, it won’t matter. But if there are several Democratic absences and none to counteract them on the GOP side, it could cause problems for Pelosi.
“The answer is I certainly hope so,” House Majority Leader Steny H. Hoyer told reporters Monday when asked if Democrats would have enough members present to avoid any snafus.
“But I also believe that COVID-19 does not discriminate between Ds and Rs,” the Maryland Democrat added. “We’ll have to see. But we’re going to elect Nancy. No doubt in my mind we’re going to elect Nancy.”
Pelosi likewise was confident about her prospects, telling reporters Monday she has the votes she needs to win the speaker’s election and that she didn’t expect coronavirus-related absences to cause trouble for her.
“That’s fine. I’m fine,” the California Democrat said.
In the last speaker election, 15 Democrats defected by voting for someone other than Pelosi or voting “present.” The latter does not count toward the total number of votes cast and thus helps lower the majority threshold.
Only 10 of the defectors are returning in the 117th Congress as Democrats. Most have publicly or privately indicated they’d support Pelosi this time.
Although there could be some last-minute surprises, the Democrats most likely to not vote for Pelosi are Reps. Elissa Slotkin of Michigan, Jared Golden of Maine, Conor Lamb of Pennsylvania and Abigail Spanberger of Virginia.
Some, if not all four, could probably be convinced to vote “present” if needed to counteract absences of Democrats who would have voted for Pelosi, but it would take at least four such absences for that to be necessary.
Democratic leaders are counting on their members to show unity. They have argued electing Pelosi, ideally on first ballot, is the only way to ensure House Minority Leader Kevin McCarthy doesn’t end up getting elected speaker since all Republicans are expected to vote for him.
“I think she’ll have the votes,” Hoyer said. “We didn’t, every one of us, all 100 percent of us, didn’t work as hard as we worked to maintain the majority so we could set policy to give that up.”
If Pelosi is elected speaker as planned Sunday, she’ll give remarks addressing the House — typically an overview of her expectations for the session that will outline hopes for comity, bipartisanship.
Then comes the swearing in. Pelosi’s oath of office is administered by the dean of the House, currently Alaska Republican Don Young. She will then administer the oaths to other members and delegates in groups.
The seven groups for the swearing in will vary slightly from the ones used for the quorum call and speaker election to allow the freshmen to be sworn in together in the first group.
All of this will take several hours, with the proceedings expected to last into the evening Sunday and pick up again Monday with consideration of the rules package.
The first few days could feel like a breeze, however, compared to the tedious process ahead when Congress meets Jan. 6 in a joint session to count the electoral votes for the presidential election.
A group of Republicans led by Rep. Mo Brooks of Alabama and Sen. Josh Hawley of Missouri plan to object to the vote counting in some swing states. The process for overriding the objections will take hours, if not days, to resolve.