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Saturday, October 10, 2015

Can a Non-Member Become Speaker?

Some commentators have noted that the Constitution does not define the qualifications for speaker of the House and are speculating that the lawmakers could pick someone from outside Congress. Diana Schaub says no:
However, this construction of the passage ignores a number of other textual elements in the Constitution, as well as other relevant texts. There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress is vested with specified legislative powers and that Congress “shall consist of a Senate and House of Representatives.” In Article 1, Section 2, Clause 1, we learn that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”
These definitions govern the meaning of subsequent clauses. I admit that it would have put the kibosh on the present foolishness if the fifth clause had included the words in italics: “The House of Representatives shall choose from among their number their Speaker.” I think it simply never occurred to them that someone would take it into his head to contend that the Speaker of the House could be an individual who was not a fellow legislator. The possessive pronoun is important. The House chooses “their” Speaker—a Speaker, we might say, who is of the House, by the House, and for the House. According to Article 1, Section 2, Clause 1, the House is composed of members and only members. The existing members of the House cannot summon into being a new member. The drafters thought the chain of connection from Sections 1 and 2 to Section 5 was clear enough; and for over 200 years, it was.

The first Congress clearly thought the Speaker must be drawn from the current membership. When they assembled on April 1, 1789, the first order of business was the drafting of rules. By April 7, they had adopted the “STANDING RULESand ORDERS of this HOUSE,” the first of which laid out “the DUTY of the SPEAKER.” Among the duties:

In all cases of ballot by the house, the speaker shall vote; in other cases he shall not vote, unless the house be equally divided, or unless his vote, if given to the minority, will make the division equal, and in case of such equal division, the question shall be lost.

There were eight signers of the Constitution in this opening session of the House, among them James Madison. By the rules they adopted, they indicated their view that the Speaker of the House must be a member of the House, inasmuch as no non-member could have a vote.
In the unlikely event that the House did turn to a non-member, would the courts intervene?  That scenario seems even more unlikely. Under the political question doctrine, federal courts will not
take on certain controversies because their resolution belongs to the political branches. 

In any case, the question is academic.  The lawmakers need somebody who actually knows how the House works, so as a practical matter, the only non-members in that category would be former members, and specifically former leaders or committee chairs.  For obvious reasons, Denny Hastert is out of the running.  Jonah Goldberg has talked about Newt, but that was a whimsical idea:  nobody who actually remembers his speakership would seriously entertain the idea.