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The presidential electoral circus draws to an end in Congress

Posted January 6, 2021 8:50 a.m. EST

— The fallout from Wednesday's congressional session to count the 2020 electoral votes will echo for years to come. The state of the presidential electoral process. The state of the country. The state of a political party. The state of a Congress potentially moving into a new era of Democratic control.

The significance shouldn't be minimized. When the actions of President Donald Trump are factored in, there is no precedent for this moment. Have there been objections in past years? Yes. Have there been objections of this nature, given the pressure from the clearly defeated leader of the country? Nope.

The bottom line

Let's make this abundantly clear: this process ends with the certification of Joe Biden as the 46th President of the United States. Everything in between now and the final elector tally being read off is noise. Boisterous. Unruly. Likely unseemly. At times barely tethered to reality. But it's not actionable or tangible in terms of having an actual effect. That being said, however long it takes -- and it will not be a short day -- this ends the same way: Biden is inaugurated on January 20.

What doesn't end is battle inside the Republican Party that has flooded into the open the last several days. What doesn't end is how the country moves on from this moment -- if it does at all.

What to watch

This one is pretty simple: the members of the 117th Congress. Part of the day they'll be together in joint session. Part of the day they'll separate to their own chambers to handle expected objections. There will be debate and there will be votes. But this is mostly a day of watching the respective floors.

Inside the GOP objection effort

The ad hoc nature of this entire endeavor began with a few House Republicans making noises that they planned to challenge the results of this election. It was a long-shot effort. It still is.

They were the usual Trump allies: Rep. Jim Jordan, the top Republican on Judiciary, plus Rep. Mo Brooks of Alabama and Andy Biggs of Arizona. But even those members are still in the dark about how far some senators are going to be willing to go Wednesday.

If it seems like this entire movement is untethered to one leader, that's because it is. Members are having their own conversations with Trump. They are having one-off meetings with one another. But this isn't a centrally organized effort. You have Sens. Josh Hawley and Ted Cruz. You have the top Republican in the House, Kevin McCarthy, in an entirely different position than that of Senate Majority Leader Mitch McConnell.

A GOP source familiar with the plans tells CNN that while there have been phone calls and one-on-one conversations, senators are making their own choices about objections. The House is learning about some of their plans second-hand. And while House members are lined up and prepared to challenge six states -- Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin -- they recognize that those efforts only go somewhere if a senator is willing to sign on.

What Wednesday looks like

The beginning of the day will be ceremonial. The sergeant at arms will announce the Senate and Vice President Mike Pence will enter the chamber. He will take his seat as the presiding officer, call the joint session to order and we will be off to the races. At this point, Pence will instruct the four tellers -- Sens. Roy Blunt of Missouri and Amy Klobuchar of Minnesota, and Reps. Rodney Davis of Illinois and Zoe Lofgren of California -- to take their place at the desk where Pence will begin to hand the state elector certificates to tellers one by one.

First will be Alabama, then Alaska, then Arizona.

At this point, we expect that a GOP member will raise an objection to the electoral results from Arizona. Pence will ask if there is an objection in writing that has been signed by a senator. Cruz has made it clear he will sign on.

Once that is presented, Pence will ask each chamber to go and deliberate separately. Then the real fight begins.

The debate

The law outlines that the House and Senate will have up to two hours to debate, but how that time is divided and who will speak has not fully been flushed out.

In the Senate, McConnell has been working toward an agreement that would allow for an hour of debate for those supporting the objection and another hour for those who are opposed to it. But in order to pass it, McConnell would need unanimous consent. We expect that some Democrats are going to want to speak out against Cruz's challenge. But the more interesting moment will come when Republican senators stand up in opposition.

Each member can only speak for up to five minutes, but all eyes are going to be on the Republican members opposed to overturning the results and whether they actually speak up knowing Trump will be watching closely. So far, we know that at least one Republican senator -- Pat Toomey of Pennsylvania -- plans to speak out at least against the objection to the Pennsylvania results.

But he's retiring. Keep your eyes out for Sens. Ben Sasse of Nebraska, Lisa Murkowski of Alaska and Tom Cotton of Arkansas. In the House, the debate could be more unruly. We know House Speaker Nancy Pelosi will be presiding. She will call on members to speak, and again, each member will only have up to five minutes.

The vote

This is expected to go much more quickly in the Senate than it will in the House. The House will have to vote in groups as they have throughout the pandemic. That could stretch to hours per vote. The expectation is that the Senate will have to wait each time for the House to finish its business before the joint session can resume.

The other objections

We still don't know exactly how many objections could come Wednesday. We expect Sen. Kelly Loeffler, who CNN has projected just lost her runoff race to the Rev. Raphael Warnock, to object to Georgia. We know that Hawley will object to Pennsylvania.

That leaves Michigan, Nevada and Wisconsin still potentially on the table. Senators have been less inclined to go down the route of the latter three, even as their House colleagues have pressed them repeatedly to do just that.

The calculation becomes how much pain the senators want to actually inflict, because, again, we all know how this ends: Biden will be the next President. No Republican in the House or Senate is under any illusions that is the reality. This circus is for an audience of one. And the question of how many objections there will be is partly a question of when will Trump be satisfied that Republicans fought for him on the floor.

The role of the vice president

Let's be abundantly clear here: it is largely as traffic cop (as guided by the parliamentarians), ceremonial in nature as the person who announces tallies. Even the guiding resolution passed by the Senate to lay out the rules of the joint session make clear that's his role.

The President can say whatever he wants about whatever he thinks Pence's role is in this scenario. None of what he's saying is accurate. Pence, as CNN's Ted Barrett reported, huddled with the parliamentarians for several hours earlier this week. And he's Mike Pence, so it's fair to say he's fully prepared -- and fully aware -- of what his role is here.

How long will it take

This is largely a calculation of how many objections there are, how long it takes to vote and, of course, whether or not leadership breaks at any point to come back Thursday. Right now, the expectation is Democratic and Republican leaders want to go straight through the night if they have to. Making this too easy and giving members a break only emboldens Trump loyalists to object to more states, get more airtime and delay the inevitable. Still, don't expect members to be on the floor the entire time. They have hideaways and offices they can retreat to. They've been encouraged to stay away because of the pandemic until it's time to vote or speak.

Estimates are just that: estimates. But aides have been allotting roughly four hours per objection.

Keep an eye on (but don't pay too much attention to):

There will be the actual objections -- valid ones, with precedent -- immediately triggering action between the two chambers.

And then, people involved say, there will likely be ... other stuff. Think along the lines of the many theories being pitched to Trump by his lawyers -- theories without any legal basis whatsoever. Theories like:

The call for competing slates of electors. No competing slates have been delivered to Congress, because no competing slates have been submitted by the proper state authorities. This is outside the bounds of the session and will be rejected.

The unilateral authority of the chair to reject specific slates. A member may pop up and attempt to cite Thomas Jefferson or Richard Nixon in arguing Pence has unilateral authority to make decisions on electors. He does not. Period. And this examples aren't even remotely close to apples-to-apples precedent. (Jefferson's related to a technical glitch, not a change in outcome. Nixon's related to competing slates of electors in which he opened the question to Congress to object but didn't make the decision on his own.)

Repeated efforts to adjourn the proceedings in order to secure a 10-day investigation (as called for by the Cruz group). It's statutorily prohibited.

The Republican Party

There's no direct comparison to where the party is right now, but the closest parallel you can draw is back in 2013 when then-freshman-Sen. Cruz led his party to shut down the government. The base was with Cruz. The leadership was not. And the saga that unfolded left the party splintered for years -- it was a moment that left Republican rank-and-file members who hadn't stood with Cruz forced to explain to their voters how shutting down the government wasn't going to end Obamacare. It wasn't possible, but it didn't mean that some members didn't face the ire of the electorate.

GOP aides say that the base is furious right now at anyone who isn't standing with Trump. The only hope most members have is that the large number of Republicans who are going to rebuke this effort in the Senate will only amount to a temporary blip and not a long-lasting stain on party unity.

The numbers

As it currently stands, 24 Republican senators have said they will certify Biden's election. Thirteen say they will object. Aides tell us the former number will grow much larger over the course of the day. To be clear here: the momentum has swung hard against the objectors inside the conference. And not just on ideological lines.

McConnell

Quietly, and without much fanfare, McConnell has made a series of moves in the last several weeks to steer his conference (and, by extension, his party) away from Trump. Keep an eye on his remarks on Wednesday -- he'll be the first one up, and given his clear objections to the decision by members of his conference to object to several states, what he says will be extremely notable.

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