(This article first appeared in the American Spectator: https://spectator.org/an-outside-speaker-a-constitutionally-dubious-bad-idea/)
By: John C. Wohlstetter, Senior Fellow
The normally astute NY Post columnist Miranda Devine recently reported that House Republicans are considering appointing Lee Zeldin for a number of positions, including that of Speaker of the House. Zeldin’s term as a Representative ends with this Congress. Having run for governor of New York and lost, he will not sit in the new House, come January 2023.
No one not elected the the House has ever been named Speaker. True, the text of the Constitution does not expressly provide that a Speaker be a sitting Member. Art. I, sec. 2, cl. 5 merely states: “The House of Representatives shall chuse [sic] their Speaker and other Officers. . . .” Yet tacitly, as set forth below, it does. And worse, it is a very bad idea.
In a 2021 article for the Federalist Society, Cleveland Marshall College of Law professor David Forte and federal appeals judge J. Harvie Wilkinson III offer a resounding “no” to the question. They trace the history of the parliamentary Office of Speaker back to 1377. In England, the Speaker was originally a powerful Member of the House of Commons; but by the end of the 18th century the Speaker was relegated to the role of being an umpire presiding over the debates.
Conversely, the American Speaker has always been a powerful Office. During the Articles of Confederation (1777-1788), the Speaker was always a sitting Member. The 1780 Massachusetts Constitution, drafted by John Adams and hence especially influential, so specified. The 1787 federal Constitution did not use comparably specific language, because the text as drafted by New York delegate Gouverneur Morris, in his role on the Committee of Style and Arrangement, reflected the drafters’ desire for a less wordy document.
The authors conclude:
Genuine originalism looks to the contemporary understanding of the text of the Constitution, including what is left out. In the carefully crafted separation of powers . . . . The House of Representatives represented the people as a whole. It would have been unthinkable [for the House to appoint as Speaker someone not elected by the people].
Three reports issued by the Congressional Research Service (CRS), since 1914 the principal research arm of Congress, collectively confirm this view. A 2017 CRS report discussed the role of the Speaker; a 2021 CRS report traced elections for Speaker, from 1913 through 2021; and a 2022 CRS report answered FAQs about the Speaker.
From the First Congress (1789) up to 1839, the Speaker was elected by cast ballot; in 1839 the House practices were amended to require votes viva voce—Medieval Latin for “with the living voice”—each voting Member speaks aloud “yea” and “nay” when voting on passage of legislation, and adds a preferred nominee’s name when voting for Speaker. (Because the Speaker is elected first, the procedure is guided by tradition rather than formal rules.) No time limit is imposed; in 1855 it took 133 ballots over two months to elect a Speaker. An increasingly important factor has been longevity of service: From 1789 to 1899, the average length of service for those elected Speaker was 7.1 years; from 1899 thorough 2015 the average length tripled, to 23.3 years.
Before 1995, votes for non-Members were rare; beginning with the election of Newt Gingrich as Speaker, non-Members have been nominated in 11 of 14 contests; the 118th Congress that convenes in January 2023 is likely to continue this recent trend. Since 1879, a Speaker need not get 218 votes to be elected, merely an absolute majority of the votes cast by those present and voting. Since the House reached its 435-Member size in 1913, six Speakers have been elected by fewer than 218 votes: James Beauchamp (“Champ”) Clark (D-MO), 217 in 1913; Frederick Gillet (D-MA), the last Speaker elected after multiple ballots, 215 in 1923; Sam Rayburn (D-TX), 217 in 1943; Newt Gingrich (R-GA), 216 in 1997; John Boehner (R-OH), 216 in 2015; and Nancy Pelosi (D-CA), 216 in 2021.
Non-Members received votes in the elections of 1997, 2013, 2015 (both elections), 2019 and 2021. Most were either former Members, or senators. The most prominent outlier was Colin Powell, a former national security adviser (under Reagan), chairman of the Joint Chiefs (under Bush 41) and secretary of state (under Bush 43), who received votes in 2013, and in both 2015 contests. In 2019, Obama vice-president Joe Biden, and defeated 2018 Georgia gubernatorial candidate, Democrat Stacey Abrams—a persistent sour-grapes “election denier”—each received one vote.
Presidential Succession. The Constitution, per Art. II, sec. 1, cl. 6, empowers the Congress to provide for the line of presidential succession, in event of a double vacancy. The Presidential Succession Act of 1947 put the Speaker of the House next after the vice-president in the line of succession. (The Speaker had been behind the Senate president pro tempore under the original succession law enacted in 1792; in event of a double vacancy, a special election for president and vice-president was to be held. The 1886 succession law put Cabinet members, in the order that their respective departments were created, after the vice-president; the Speaker and president pro tem were taken out of the line, because executive experience was then more valued than parliamentary experience. The 1947 law reinstated the Speaker and president pro tem, but reversed their order in the line of succession behind the vice-president.)
Truman’s main rationale for doing so was that unlike Cabinet officials, who are presidential appointees, as a Member of the House of Representatives, the Speaker is an elected official. Thus, clearly, in putting the Speaker in the line of succession, President Truman assumed that the Speaker would always be a sitting, duly elected Member of the House—and conversely, not an outside appointee. Others felt differently, but Truman prevailed.
Bottom Line. The history and traditions of the American constitutional republic strongly weigh against having a Speaker who is not a serving Member of the House. Especially in highly partisan times, following a double vacancy by elevating a Speaker from any political party other than that of the president and vice-president would be perceived as an act of regicide. Such elevation would be bereft of the legitimacy that comes from having a president and vice-president elected by consent of the voters.
Thus, the GOP would be well advised to steer clear of naming as Speaker of the House anyone not elected to the new Congress. And anyone offered the job who is not elected to the new Congress would be well advised to decline the offer.
John Wohlstetter, a senior fellow at the Gold Institute for International Strategy is author of Sleepwalking with the Bomb (Discovery Institute Press, 2d. ed. 2014).