[EL] Pence as Presiding Officer at Joint Session to Count the Electoral Vote

Wed Dec 23 12:11:25 PST 2020

Re the Politico item and the statement "Can Congress vote to reject* PENCE* as
the presiding officer because he has a stake in the outcome? Congress can
practically do anything it wants with a majority vote."

Of course, the statement is a gross generalization of either House's
ability to exercise its rulemaking powers. But I think it is quite inapt
here.

Pence is constitutionally the President of the Senate under Article I, Sec.
3, cl. 4. The Twelfth Amendment requires that "[t]he President of the
Senate shall, in the presence of the Senate and House of Representatives,
open all the certificates and the votes shall then be counted." And 3 USC §
15 plainly provides that "The Senate and House of Representatives shall
meet in the Hall of the House of Representatives at the hour of 1 o'clock
in the afternoon on that day, and the *President of the Senate* shall be
their presiding officer." (Emphasis added.)

Likewise, the President pro tempore is a constitutional office to exercise
the duties of the President of the Senate in the latter's absence or
assumption of the presidency under cl. 5 of the same section. The Humphrey
precedent merely illustrates the straightforward application of the
constitutional arrangement.

As a parliamentary matter, it is not clear to me at all how a joint session
could even begin to "reject Pence as the presiding officer." Under 3 USC §
18, during the joint session, "the President of the Senate shall have power
to preserve order; and no debate shall be allowed and no question shall be
put by the presiding officer except to either House on a motion to
withdraw" in response to a valid objection. So a motion to elect a
presiding officer of the joint session would be out of order. A question of
privilege is the mechanism by which a house removes an elected presiding
officer; those questions are not available in a joint session and in any
event could not be offered to remove Pence from his constitutional office
since the Senate did not initially elect him. And since the President of
the Senate has an affirmative duty to preside, the motion to temporarily
vacate the chair would be out of order.

While I do not expect the popular media to understand the finer points of
legislative procedure, for a specialist publication to blithely make such
an erroneous statement does not contribute to greater understanding on
institutional constraints.

>
>
> “POLITICO Playbook PM: Deep dive: Electoral College on the Hill”
> <https://electionlawblog.org/?p=119853>
>
> Posted on December 22, 2020 11:04 am
> <https://electionlawblog.org/?p=119853> by *Rick Hasen*
> <https://electionlawblog.org/?author=3>
>
> Interesting stuff on the VP here
> <https://www.politico.com/newsletters/playbook-pm/2020/12/22/deep-dive-electoral-college-on-the-hill-491225?nname=playbook-pm&nid=0000015a-dd3e-d536-a37b-dd7fd8af0000&nrid=0000014e-f109-dd93-ad7f-f90d0def0000&nlid=964328>
> :
>
> *THE VP TYPICALLY* presides over the certification in his role as the
> president of the Senate. *JONATHAN SWAN
> <https://www.axios.com/trump-white-house-conspiracy-theories-d95450a4-c7a3-4579-a568-0473b18529c9.html>* from
> Axios had an excellent report this morning about how President* DONALD
> TRUMP* is turning on everyone, and how he would view *MIKE PENCE* certifying
> the results of the election as “the ultimate betrayal.”
>
> *WELL, PENCE DOESN’T HAVE TO *if he doesn’t want to. If *PENCE* declines
> to show up, Sen. *CHUCK GRASSLEY,* the 87-year-old Iowa Republican who is
> president pro tempore of the Senate, does it in his place. No sweat, no
> problem.
>
> *IN 1969, HUBERT HUMPHREY* declined to preside over the certification
> because he was the losing presidential candidate. So Deschler’s Precedents
> — which governs some of the instances that arise in the House — says this
> in Sec. 2.5 of chapter 10: “In the absence of the President of the Senate,
> the President pro tempore of the Senate presides over the joint session to
> count the electoral votes for President and Vice President.” This is the
> precedent that was set in 1969. (h/t this terrific CRS report
> <https://crsreports.congress.gov/product/pdf/RL/RL32717> about the
> process by which Congress will certify the Electoral College)
>
> *OF COURSE,* declining to show up is probably as bad as showing up and
> certifying the results, in *TRUMP’S* mind.
>
> *THE LARGER MORAL QUESTION* is *can**PENCE* preside if he has already
> been strategizing with the opposition.
>
> *AND TWO UNANSWERED *questions that may have to be decided by Congress’
> rules authorities in the coming days and weeks:
>
> 1.       Can Congress vote to reject* PENCE* as the presiding officer
> because he has a stake in the outcome? Congress can practically do anything
> it wants with a majority vote.
>
> 2.       If *PENCE* does preside and goes to bat for *TRUMP,* can
> Congress overturn an unjust or improper ruling? This is also an open
> question.
>
> *JAN. 6* will be a long day, given *TRUMP* has a crew of House
> Republicans willing to follow him down this idiotic rabbit hole. But this
> is going to fail in a spectacular fashion.
>
> [image: Share]
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D119853&title=%E2%80%9CPOLITICO%20Playbook%20PM%3A%20Deep%20dive%3A%20Electoral%20College%20on%20the%20Hill%E2%80%9D>
>
> Posted in electoral college <https://electionlawblog.org/?cat=44>, legislation
> and legislatures <https://electionlawblog.org/?cat=27>
>
>
>
>
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
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-- 
Hugh L. Brady
T (512) 289-0535 | F (512) 857-1016
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