The Constitution Won't Be Much Help Resolving the Speaker Mess

The start of a new Congress is always accompanied by anticipation about what laws, alliances and political skirmishes will take shape in the new legislative session. This year, there is also an unusually high level of drama over the most basic question facing the House: Who will serve as speaker?

House Minority Leader Kevin McCarthy (R-Calif.) is vying for the job but has struggled to gain support from enough fellow Republicans, especially hard-right members aligned with former president Donald Trump who see McCarthy as insufficiently supportive of their movement.

If he ultimately doesn’t have the votes to wield the gavel, what happens? Good question, academics say — and anyone looking to the Constitution for guidance will be sorely disappointed.

“The Constitution says almost nothing about the selection process for the speaker of the House,” said Matthew Green, a professor of political science at the Catholic University of America. “All it says in Article One … is ‘The House shall choose their speaker.’ That’s it.”

The role of speaker is one of the few that appears in America’s foundational document. But the rules for picking one — and the powers of the office — were intentionally left vague, the only major condition being that the entire House must participate. Instead, the rules have evolved over centuries. Like other political customs that developed as norms rather than originating from written rules, they’re more vulnerable to possible abuse or dysfunction.

By tradition, the speaker is selected by a roll-call vote in which a majority is required to elect a speaker, though in theory if some members vote “present,” a nominee can still win a plurality of the votes cast and become speaker. In Congress’s early years, the speaker vote was done by secret ballot, which made coalescing around any candidate difficult, leading to consistent gridlock in the country’s first decades.

“The earliest parties formed in part around electing the speaker,” said Eric Schickler, a professor of political science at the University of California at Berkeley. “In the second and third Congresses, there were more Jeffersonians elected, but the Federalists were organized” and elected their choice of speaker. “That started this practice of parties getting together and trying to settle on one candidate at the start,” Schickler said.

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“Since the 1970s — accelerating in the 1990s — the speaker has become much more powerful as a party leader,” said Julian E. Zelizer, a professor of political history at Princeton University. “What eras of polarization bring are parties that remain united, which means that the head of the party will have more ease in keeping the caucus disciplined.”