The bicameral session of the House and Senate — which could stretch into the early hours of Thursday — will be the stage for this last stand by Trump allies who have refused to accept the election results.
Inside the Capitol, the effort has splintered Trump’s party, with more than 100 House Republicans and at least a dozen Senate Republicans objecting to Biden’s victory while Senate GOP leadership warned their caucus against the effort. Already, senators are signaling they’ll challenge results in Arizona, Georgia and Pennsylvania.
But the most intense focus will be on Vice President Mike Pence, who will preside over the 1 p.m. joint meeting, where he’ll be required by the Constitution to count the electoral votes certified by the states. Biden earned 306 electoral votes to Trump’s 232, and a wave of legal challenges by Trump to reverse several states’ results failed at every level of state and federal court.
Pence told Trump at a Tuesday lunch that he will simply follow procedures allowing GOP objections and possibly make a statement related to election fraud during the process, two White House sources told POLITICO. But late Tuesday, Trump denied the suggestion and went even further, alleging that he and Pence are in complete agreement that Pence has unilateral power to “decertify” election results in multiple states and deny Biden the presidency. Pence does not have that authority, either under the constitution or the laws governing the counting of electoral votes, but Trump’s attempt to box him in suggests he’s seeking to pin his defeat on Pence’s required actions.
In fact, Pence has spent the weeks leading up to this moment poring over legal opinions related to the 133-year-old Electoral Count Act, which governs the proceedings, and consulting with chief of staff Marc Short and General Counsel Greg Jacob about his role. Part of his intense preparation included a Sunday night visit to the Senate parliamentarian to discuss his statutory obligations.
During Wednesday’s session, Pence, per the Twelfth Amendment and laws stretching back to 1887, must read the results alphabetically by state, introducing the certified electors and entertaining any challenges raised by lawmakers on hand. But Trump, beginning Monday night, has begun leaning on Pence to adopt a radical interpretation of his power and refuse to count Biden’s electors in multiple states — a power Pence does not have.
Ahead of his role Thursday, Pence has said little publicly, other than that he expects to entertain Republican challenges to Biden’s electors from key states, indicating that he anticipates introducing Biden’s electors — a decision Trump has pressed him to refuse to make.
People familiar with the vice president’s thinking said he will be guided by the Constitution and plans to follow the law as written when he presides over the joint session, suggesting he will ignore calls to unilaterally reject Biden’s electors, despite the blow it could deliver to his own presidential ambitions.
In years past, the vice president’s ceremonial role has barely merited a mention — except for the awkwardness of 2001 and 2017, when Al Gore and Joe Biden were required to certify their rivals’ victories.
If Pence doesn’t break with tradition, the bulk of the action will occur when Republicans lodge formal challenges to the results, which will be read one state at a time. House Republicans plan to challenge six states, though Senate Republicans have only so far embraced three.
Each successfully submitted objection will tee up two hours of debate for each state and likely result in an all-night session. For each state challenge, the House and Senate must recess the joint session and split up to separately debate and vote on them.
Lawmakers in both parties spent much of this week strategizing over the floor antics, including Speaker Nancy Pelosi, who has worked with key state delegation leaders on details such as the order of speeches on the floor. Congressional leaders also have discussed how to keep another threat — the coronavirus — at bay, while hundreds of lawmakers are on the floor Wednesday and likely into Thursday morning. On Tuesday afternoon, the Capitol physician issued a memo urging lawmakers to maintain distance in the chamber — a difficult task with the entire Congress forced to spend at least some time in the House chamber at the same time.
To help manage his conference, House Minority Leader Kevin McCarthy has worked to ensure Republicans on both sides of the issue can deliver some of the five-minute floor speeches permitted during Wednesday’s debate, according to GOP sources.
McCarthy, who has defended Trump’s push to subvert the election, has not said how he plans to vote or whether he will join any of the objections. And sources familiar with McCarthy’s thinking don’t expect him to announce his position ahead of time.
GOP leadership also organized a meeting for House Republicans Tuesday morning, where they were able to debate the objection effort for over two hours. Some attended the meeting in person, while others joined via Zoom. Rep. Mo Brooks (R-Ala.), one of the leading objectors in the House GOP, described the meeting as an “excellent and spirited discussion between those who fight voter fraud and election theft . . . and those who acquiesce to it.”
Dozens of lawmakers lined up at the mics to explain their positions, including Rep. Chip Roy (R-Texas), who has been one of the most vocal GOP opponents of challenging the election results. But multiple sources who attended the meeting said it never turned heated, despite divisions in the conference about how to proceed.
Meanwhile, Democrats are preparing an impeachment-like strategy for countering the GOP challenges. Pelosi — who intends to preside for the entirety of the House debates — has tapped two of her trusted impeachment managers, Rep. Adam Schiff (D-Calif.) and Rep. Zoe Lofgren (D-Calif.), along with Reps. Joe Neguse (D-Colo.) and Jamie Raskin (D-Md.) to coordinate strategy.
Democrats are also going to lean on delegations from the challenged states to push back on GOP talking points about fraud and misconduct, for which there is no substantial evidence. Pennsylvania Democrats held a conference call Tuesday to develop a pushback plan.
No challenges to electors have ever been upheld. The last time objectors forced a debate came in 2005, when Democrats cited irregularities in Ohio’s election results. The challenge was easily swept aside in both chambers. House Democrats also objected to the results in 2001 and 2017 but no senators joined them.
For Trump, who has pressed his Hill allies to challenge Biden’s victory for weeks, the effort to remain in power comes as he and his company face increasing legal peril in expanding investigations led by the Manhattan district attorney and the state of New York.
For the lawmakers backing his effort, it’s a reflection of Trump’s grip on the base of the Republican Party who view efforts to overturn the 2020 election results as the ultimate loyalty test.
Trump supporters are set to begin amassing Wednesday morning by the White House ahead of the 1 p.m. ceremony. Trump has promised to address the gathering, which has already led Mayor Muriel Bowser to urge local residents to remain at home amid the demonstrations and avoid confrontation. D.C. officials even called in the National Guard to help maintain security in the capital. The city’s police chief, Robert Contee III, has cited information that some protesters have intended to come armed, and Bowser has issued public reminders about the city’s strict firearm laws.
Lawmakers have been urged to gather inside the Capitol at least four hours before proceedings begin to avoid crowds. The House sergeant at arms also urged lawmakers to use the Capitol’s underground tunnel networks, rather than risk forging into the crowd of marchers.
Wednesday’s session “is about guaranteeing trust in our democratic system,” Pelosi said in a letter to Democratic colleagues Tuesday night. “As Members of Congress, we all have a responsibility to uphold the principle: the people are sovereign and that they hold the power to choose their leaders through the ballot box.”