Senate Sworn In Tomorrow

The 111th Congress gets underway this week, with the House and Senate getting sworn in and down to business tomorrow, even as we wait for Barack Obama's inauguration on the 20th. In fact, among the first orders of business is Congressional counting of the Electoral College's vote in the Presidential Election.

Of course, two Senate seats are still at issue, one in Minnesota and the other in Illinois. Over at Congress Matters, Kagro X waxes fantastical on a potential procedural move in the Senate that would certainly make resolution of those seats interesting.

Traditionally, the presiding officer -- for swearing in day, that's usually the Vice President -- recognizes the majority and minority leaders in turn for a few welcoming remarks before beginning with the process of administering the oath.

What if at that point, Harry Reid moved to seat either Al Franken or Roland Burris or both, without prejudice to the claims against their seats, as has usually been the case in contested elections? Yes, the Republicans would surely oppose the motion, and would just as surely filibuster it as promised. But if the motion was made before anyone was sworn in, you'd technically be looking at a situation in which there were only 64 Senators "duly chosen and sworn," as the phrasing of Rule XXII (the cloture rule) goes. The partisan breakdown at that point would be 38 Democrats and 26 Republicans, with 21 Democrats (if you include Burris and Franken) waiting in the wings, along with 15 Republicans (which would include ringleaders McConnell and Cornyn).

With just 64 Senators duly chosen and sworn, the "constitutional three-fifths" required to invoke cloture would be 39. Of course, we'll have just 38 at that point, so a party-line vote -- and it almost assuredly would be a party-line vote on something this contentious -- on cloture on the motion to seat Burris and/or Franken would come up one vote short.

But Rule II appears to say that, "all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of."

If that means what it sounds like (and there's always every chance that it doesn't, when you're talking about the Senate), and the motion is made before the swearing in process gets underway, then nobody gets sworn in until the deadlock on Burris and/or Franken is settled. The Senate sits at 38-26, and the minority leadership is temporarily decapitated, though they'll still have floor privileges as Senators-elect. - Kagro X, Congress Matters

Imagine if the Republicans filibustered the seating of the Senate itself. Talk about obvious obstructionism.

Now, that's probably not going to happen, as it requires affirmative action by Majority Leader Read Reid at the commencement of the very first gavelling of the Senate, but it's a lovely scenario to imagine, isn't it?