Is There a Leader in the House?

“Radicals Forge Deadlock in House as Congress Opens”

This could easily have been the headline in any newspaper, blog post, podcast, social media feed, or television scroll in January 2023. That’s when the 118th House of Representatives kept trying over and over again to open but couldn’t because right-wing radical Republicans refused to join their fellow Republicans in voting for Representative Kevin McCarthy of California for Speaker of the House.

This headline in The New York Times, though, did not appear in 2023. It actually hearkens way back to December 4, 1923, the last time the House took more than one election to choose its speaker. That year, so-called radicals opposed Republican Frederick H. Gillett of Massachusetts, who finally became Speaker of the 66th Congress after nine votes held over three days.

As you can see, the House of Representatives has a long history of contentious battles over its leadership. It’s happened a total of fifteen times, including earlier this month, and the first skirmish took place more than a century ago. The record holder is the 34th Congress in 1856, which quarreled for two months and cast 133 ballots before finally settling on Nathaniel Banks, a member of the Know Nothing party, as Speaker.

The Saturday Evening Post

Most recently, when Republicans won a slim majority of the seats in the congressional elections of 2022, McCarthy viewed himself—and was widely considered—to be the leader of his party. He had represented his district in Congress since 2007, serving as Whip and later as Majority Leader. The Whip persuades members to vote for bills the party cares about. The Leader sets the party’s agenda and priorities. The Speaker has an even more important role. That person gets to push or block bills, oversee setting the rules for the House, and assign members to committees. Speakers also snag the biggest office in the building. McCarthy was so sure he would win the job that he moved into the Speaker’s office before the votes were counted! That was, literally, not a good move, since he lost fourteen times over five days. He finally won the post on the fifteenth vote.

In the meantime, in both 1923 and 2023, the Senate decided to adjourn until the House got its act together. Why didn’t the Senate just keep plowing ahead? After all, it could continue to hold committee meetings and conduct other business. However, Congress can’t pass any laws until both houses are officially in session. And that can’t happen until the new members are sworn in—an act that, in the House, is carried out by the Speaker. No Speaker, no members. No members, no representative government.

Confusing? For sure. Obstructionist? Definitely. A fault line in the Constitution? Probably not. Here’s why.

Article I of the Constitution states, “The House of Representatives shall chuse their Speaker.” That’s it. The Constitution says nothing about how they should do it or even who is eligible. The Speaker could be a member of the party that’s in the minority—if they could get enough votes—or even someone who’s not a member of Congress at all. When the framers wrote this clause in 1787, they intended that person simply to enforce the rules and to be nonpartisan. So almost anyone considered fair and even-handed might do.

The Constitution does weigh in in one other way that’s related to electing the leader of the House. As we explained in “I Swear…,”  Article VI requires national and state officials to “be bound by Oath or Affirmation, to support this Constitution.” So far, so good.

The wrinkle arose in 1789 with the very First Congress. With their first act, they decreed that the Speaker must deliver the oath to swear in the members of the House. That might have made sense at the time because there was hardly any other government official who could do the job. Even the president hadn’t been sworn in when the First Congress convened! And there was no Supreme Court yet. But this law has raised issues ever since. For instance, it is the newly elected members who choose their leader—even though, since they haven’t taken the oath of office, they’re not really members yet. They’re just ordinary citizens.

What can be done to avoid the problem of extended battles over the leader of the House? Congress could pass a law giving the Clerk of the House or, perhaps, the Chief Justice of the Supreme Court the job of administering the oath of office. Or, instead of waiting for a majority of the members to agree, the person with the highest number of votes (called a plurality) would be named Speaker. Representatives agreed to do that in 1849 and 1855. That process might or might not reduce the time it takes, however. After a lot of negotiating, McCarthy was elected with just a plurality of votes when six of his colleagues voted “Present” rather than “McCarthy.”

It’s possible that things would be less testy if the House held secret ballots rather than roll-call voice votes. That way, members could vote for their preferred candidate instead of the one they’re expected or nudged to support. Still, the process could still be long and drawn out.

Why hasn’t Congress found a fix for the problem? Good question!

The federal law governing election of the Speaker could be changed. And the good news is that it’s much easier to revise a law than it is to amend the Constitution. The bad news is that Congress, with a divided membership and possibly a weakened leader, might be headed into gridlock. We’ll find out what happens in only two more years!

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