We have a quite the serious Constitutional quagmire here. 20th Amendment states that:
and the terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin [...]
Riddle me this....
How are purported House members-elect lawfully participating in House business (election of a Speaker), if they are not actually members of the House until they are sworn in, which according to House rules, cannot happen until the election of a Speaker?
Sounds like the Constitution is long overdue for an amendment to clarify this glaring oversight by the Framers.
Furthermore, if our House has been functioning in such a disfunctional, arguably unconstitutional manner, seemingly since the beginning, have we ever truly had a legitimate Congress?
Time for a new Convention of the States to settle some of these big issues.
Remember the congress (both houses) could have written a bill any time after the 20th Amendment that takes care of this exact scenario. In fact you would expect that they absolutely had to since nobody in the House has any authority until the speaker is chosen. Even then, they should've made a law saying incoming leadership already approved before the 3rd has the authority to swear in the new members and conduct business.
Even if they made a law that looks blatantly unconstitutional on it's face, it is the law until the courts smack them down. I don't know if they did make a law but I sincerely hope our "representatives" have at least one brain cell to share between themselves. Besides - if it looked to them like they wouldn't get paid for stuff like this you can bet they codified it at some point. No way they work for free.
What if it doesn't matter because we are under martial law?