Who Says We Even Need a Speaker of the House?

The Constitution, maybe--but the framers didn't account for anything like the current GOP meltdown.

The first speaker who was really THE SPEAKER: Henry Clay

TEMPORARILY UNLOCKED

These days we take it for granted that the Speaker of the House of Representatives wields a high degree of power in both party and national leadership. And on this actual day, thanks to the House’s ongoing failure to elect anyone to that office, we’re watching our national government plunge into a state of immobility. A new session of the lower house of Congress can’t begin to legislate—the members can’t even be sworn in—until and unless a speaker is elected. Because the Republican majority can’t agree on a speaker, national legislation has stopped dead.

It’s pretty obvious why national lawmaking stops when the House doesn’t operate. Constitutionally, the lower chamber is supposed to be the driver of all money bills, just for one thing. But no bill of any kind can go to the president to be signed into law without passing both houses.

What’s not so obvious—if we stop taking it for granted for just a moment—is why electing a speaker has to serve as a prerequisite for the House’s operations. That process isn’t set out in the Constitution. It can be extrapolated only from the very little bit that the Constitution does say about the job, in Article I, Section  2:

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

That’s it.

The idea is that unlike the Senate, whose presiding officer, the Vice President, is determined constitutionally, the House has a constitutional power to choose its speaker. The section doesn’t say “shall choose their Speaker and other Officers before proceeding to Business” or whatever. That of course would be the sane procedure, under rational circumstances, but given irrational circumstances, it might be worth noting that the Constitution empowers both chambers to make their own rules. Current procedures for electing a speaker have emerged not from constitutional requirements but from rules and precedents. The precedents have no legal force, and the rules are changeable by the chamber. Scholars and lawyers may disagree, but I wonder why the House—a more rational House than this one—couldn’t revise the rules for electing a speaker such that, when an idiotic, obstructionist impasse is caused by irresponsible members, the chamber operates speakerless until a speaker is elected. In such circumstances, couldn’t the chamber appoint more or less any schmoe with a rulebook to sit in the chair, temporarily, and referee proceedings?

This House won’t do anything like that, of course. Neither party is committed to getting around the impasse. But if the more rational House of my fantasies were to revisit the rules, in the manner I’m imagining, would there be a legit objection on constitutional grounds? I don’t know.

On a much larger scale, it’s not necessarily immediately obvious why the Speaker of the House wields so much power anyway. Another thing that’s not in the Constitution is the speaker’s national role, though it’s come to seem essential to American governing. The critical importance of the speaker is a function of history, not design.

And some of that history isn’t necessarily good history.

The most recent slice of the history—what’s led to the impasse even now shutting down government—is clearly some pretty bad history, at least for the Republican Party. I won’t review it in detail, but this moment seems to me to have begun in 2016, when Donald Trump entered the GOP primaries and demolished the party as any kind of disciplined operation with platforms, plans, constituencies. Clearly the GOP already had weaknesses. Otherwise one freakish, reality-TV celeb wouldn’t have been able to wipe the floor with it. So we might look back to the role of the Tea Party Movement, beginning in 2009, as well as other factors. Today, however, GOP members and GOP constituencies first framed by Trump in ’16 are making our national legislature inoperable, despite the great man’s own advice to elect Kevin McCarthy.

The longer-range history of elevating the speaker to a pivotal position of national power is somewhat strange too—especially given the paucity of information that the Constitution gives us about the nature of the job. The elevation happened early and has gone through many changes. We can’t go into all of them today. But the earliest switch begins early in the 19th century.

In the first Congress, meeting in New York City in 1789, the House went right ahead and elected a speaker with no problem, on one ballot, with 77% of the vote. Given today’s presumptions, you’d think his name would ring down the ages: the first President! the first Vice President! and . . . the first Speaker of the House! It doesn’t, though, because Frederick Muhlenberg did nothing publicly other than what presiding officers were generally presumed to do, back then: open and close sessions, referee debate, rule on motions, and report results.

Muhlenberg didn’t take part in House debate. He didn’t visibly organize the members of his majority party, the Federalists, who had assertive House leadership in men like Fisher Ames.

That doesn’t mean Muhlenberg had no power. Speakers and presidents of deliberative bodies had long exercised power by controlling procedural flow. In the colonial assemblies, highly influential people like James Otis, in Massachusetts, and Peyton Randolph, in Virginia, served as speakers, and Speaker Muhlenberg may have had intense back-room meetings with his party allies, for all we know, but that’s kind of the point: we don’t know. He did cast some deciding votes. But there was no explicit idea that the Speaker of the House was either the party’s leader in Congress or pivotal to passing or killing legislation.

As the speaker story develops into the 19th century, it tracks with the development of American political parties. The framers of the Constitution had an ideology, shared across the parties that divided them, that parties are inherently bad. Parties are by no means inherently bad, but given the framers’ ideology, they had to pretend they weren’t members of parties, so they made no constitutional provision for managing parties, even though their Constitution tends to create and sustain a two-party system. In 1793, after an electoral switch in the House majority from the Federalists to the Republicans—the latter is ancestor of the modern Democratic Party—the election of the Speaker of the House took three ballots to get to a majority. Dealmaking went on between ballots, and good old Muhlenberg was elected as a compromise, in part because he’d been in the process of changing parties anyway, or at least trying to bridge them.

Then, having gone up against his new party by voting to appropriate funds for the Jay Treaty, Muhlenberg was stabbed, by his brother-in-law.

That’s not relevant—just a fun fact.

By now it was becoming obvious that political parties didn’t just exist but would actually be driving everything in American political life. Still, while a number of party-line and contested speaker elections occurred, the speakers’ role remained pretty back-room at best. Nathaniel Macon, for example, held the office for the Republicans three times without becoming a big name in history.

The man who broke the mold and became a big name in history was Henry Clay, of Kentucky. In 1811, Clay was only 34 and a freshman member of the House. But he’d very briefly served in the U.S. Senate, despite being too young at the time, and he had experience in Kentucky’s state assembly. One of the first truly political animals of the avowedly partisan American nineteenth century, that year Clay became the youngest Speaker of the House so far. It was he who reconceived and remade the office.

In my forthcoming book, The Hamilton Scheme—not about Hamilton alone, it gets into the post-Hamilton period when Albert Gallatin was Secretary of the Treasury—young Henry Clay comes off as a bit of jerk. For many years, Gallatin, a Genevan émigré sixteen years older than the ambitious Kentucky speaker, had been applying his immense discipline and fortitude, in both the Jefferson and Madison administrations, to whittling down the national debt, even while finding creative ways to pay for unexpected, even outlandish projects like the Louisiana Purchase.

Now, within Gallatin’s own party came this Henry Clay, leading a new political generation. Clay’s bunch of young Republicans were eager to get the U.S. into a war with Britain. Gallatin pointed out that such war would require massive funds, which could be gained only by taxes and borrowing. Clay and his cadre clung to the old Jeffersonian notion that taxes and borrowing were to be avoided at all costs. Still, they insisted, a great big war would be an awesome thing for the country.

Gallatin had also discovered that the Bank of the United States, invented by his former nemesis Hamilton, was a highly useful mechanism for stabilizing and easing public finance. In 1811, the Bank’s twenty-year charter from Congress came up for renewal, and Clay stuck to the old Jefferson-Madison line that the Bank wasn’t just bad policy but flat-out unconstitutional and should be shuttered. Even Madison himself, now president, no longer believed in the constitutional objection to the Bank that he’d invented twenty years before. Still, the Clay team in Congress got the Bank closed, even as they got the country into the War of 1812.

Unsurprisingly, military and economic disaster ensued. When it became painfully obvious that the country did need a national bank, Clay announced that national banking wasn’t unconstitutional after all. Later known as the Great Compromiser, on the Bank, he didn't compromise. He did a straight-up flip-flop.

Such was the context in which the Speaker of the House became a dominant party boss and a national leader second only to the President of the United States. Clay served the office for ten years plus some days—only Sam Rayburn, in the 1940s and ‘50’s, served longer. Clay used appointments to keep his own people in charge of the all-important committee work, but his most notable innovation was joining personally in debates on the floor, which no speaker before him had done. (Not as speaker, that is; in debates of the committee of the whole, with someone else in the chair and the speaker now just a member, some of them could get pretty loud.) By making it open, and even flagrant, Clay released the energy contained in the speaker’s office, with explosive effect.

As the century went on, some pretty hard-fought party battles over the speaker role ensued. The office became for a time even more powerful than it is now. And in 1923, it took three days of balloting to elect a speaker. I might post more on that history at some point, but in the meantime, the bad history unfolding in the Capitol should keep us grimly entertained.

____________________

Further Reading

An explainer on the 1923 speaker situation.

In 1824, having been elected to the Senate, Henry Clay gave this landmark two-day speech on what he called “The American System.”

A little bio of the first Speaker of the House.

Here’s a wild idea for electing speakers.