He may seize a few words from jurists here and there to support his version of extreme deference, but he is deaf to the jurisprudential music of the era.
If you haven’t heard, there’s a job opening on Capitol Hill. It pays well but, as the outgoing incumbent might tell you, the management duties are pretty stiff. The job, of course, is the Speaker of the House. John Boehner’s surprise announcement that he would be resigning both as legislative leader of the House of Representatives and his seat representing Ohio’s 8th Congressional District has set off a scramble for his successor. The heir apparent, Kevin McCarthy (R-CA), the next most senior party leader, at first seemed to have a lock on the job. But McCarthy’s missteps have caused at least two other Republicans throwing their hats into the ring.
With the Speakership election not as straightforward as it seemed, some have even raised what had been up until now an arcane issue: Must the Speaker of the House be a member of the House of Representatives? There are good reasons, and constitutionally based arguments, for responding in the negative. Over two centuries of legislative practice to the contrary notwithstanding, the Speaker needn’t be a sitting representative, though there are limitations on who can hold the office.
Let’s start with the controlling constitutional provision. Article I, Section 2 of the Constitution says, “The House of the Representatives shall chuse their Speaker and other Officers[.]” The absence of an explicit limitation on whom the House can “chuse” has led some to argue that they can “chuse” whomever they want, provided the selection doesn’t violate the Incompatibility Clause (Article I, Section 6), which requires that “no Person holding Office under the United States, shall be a Member of either House during his Continuance in Office.”
During the last government shutdown debate, legal scholar Sandy Levinson argued that one way to avoid the seemingly endemic dysfunction of Congress would be to have the House put in as Speaker a “distinguished non-member who is widely viewed as being ‘above’ party politics.” His idea of such a figure was Sandra Day O’Connor. And just last week, two separate conservative journalists, Jonah Goldberg and Peter Roff, advocated the nomination of Newt Gingrich, who retired as a Georgia Representative and the Speaker of the House in 1999.
But perhaps the most surprising suggestion came from freshman Senator Ben Sasse (R-NE), who unleashed what the Washington Post aptly called a “tweetstorm” on Sunday evening. Senator Sasse decried the conventional wisdom about the race for Speaker as “reductionistic” and argued that Americans want a storyteller, someone with a vision for the country’s future. And whom did he have in mind? Arthur Brooks, the non-member of Congress who heads a think tank in Washington, the American Enterprise Institute.
So what’s the case against choosing a non-member like Brooks to be Speaker? Responding to Goldberg’s suggestion for a once-and-future Speaker Gingrich, Matthew Franck offered the constitutional case for why the next Speaker should not and, indeed, cannot be someone who isn’t a sitting member of the House. Franck’s argument runs like this: If Gingrich, a private person and not a member of Congress, can be Speaker then any non-member can be speaker, and “that goes for public officials, too.” And if a public official—say, the Secretary of the Treasury or even the President—can be Speaker of the House, then “one of the principal bulwarks of the separation of powers” would be undermined. From this argument Franck draws the conclusion that the relevant constitutional provisions’ clear purpose is to ensure that “cabinet officers stay rooted in the executive branch, while speakers rise up from their native soil of the House.”
This is an odd way to argue against the selection of a private person for Speaker of the House. The focus of Franck’s argument is preserving the separation of powers by preventing public officials in the executive or judicial branches from serving in the legislature, which says nothing about private persons. Indeed, for Franck, the Progressive horrible—the specter of command-and-control governance through unified branches of government—is the true target of his constitutional argument.
But the appointment of a cabinet member or President is clearly prohibited by the Incompatibility Clause. Franck acknowledges this clause, and even cites it in support of his separation-of-powers argument. But he reads it as operating in only one direction, that is, only prohibiting members of Congress from serving in the executive or judicial branches. On this basis, he argues that the Constitution does not bar a cabinet official from appointment to Speaker “because that officer of the executive branch would not become a member of the House by virtue of his appointment.”
If the Incompatibility Clause, and the Constitution of which it is a part, embodies separation-of-powers principles, then there’s little reason for such a crabbed reading. If the underlying purpose is to preserve the autonomy of governmental branches, then the appropriate principle is the non-simultaneity of service. And if that’s the case, then the clause operates in both directions: members of Congress cannot simultaneously serve in the other two branches even as executive and judicial officials cannot simultaneously serve in Congress. Such an interpretation of the Incompatibility Clause finds support in Federalist 76, where Hamilton argues that this clause is one of the “important guards against the danger of executive influence upon the legislative body.”
We’ve thus avoided Franck’s Progressive horrible while leaving intact the notion that, under the Constitution, a private citizen could serve as Speaker of the House. More importantly, we’ve seen that there are strong constitutional grounds for this position. But none of this makes it any more likely that we’ll see a non-representative Speaker anytime soon. What’s more likely is the continuation of what we’ve seen for the last two centuries—speakers drawn from the pool of sitting representatives.
Franck is right to say that “traditional practice should probably count for something.” But it shouldn’t count for everything. This legislative tradition is likely to continue for the same reason it began in the first place: it’s in the interest of House members to limit eligibility to their own. And all the better for them if their interests have a veneer of constitutionality.