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Not So Fast, Speaker Winfrey

Is it a “fact” that non-members of the House are constitutionally eligible to serve as Speaker? The keepers of congressional knowledge and precedent (i.e., the Parliamentarians, the House historian, and other recognized experts on this sort of thing) would tell you, with perhaps an unwarranted degree of confidence, that the answer to this question is “yes.”

The basis of this answer seems to be the following: (1) the Constitution says only that the “House of Representatives shall chuse their Speaker and other Officers,” but does not specify any qualifications for these positions; (2) it is well accepted that the House’s “other Officers” (e.g., Clerk, Sergeant at Arms and Chaplain) need not be, and indeed never are, members; (3) although the House has always elected a member as Speaker, an occasional vote for a non-member candidate has been cast without being ruled out of order; and (4) various congressional publications say in passing that a non-member could serve as Speaker. The last point, of course, is a somewhat circular reason as it merely reflects the written assertion by some of the congressional experts already noted.

Personally, I have not questioned this received wisdom, but I haven’t thought much about it either. Now, however, with the House speakership up for grabs, some people are discussing, with more or less seriousness, whether the House could look outside its membership for a candidate. Suggestions have included Newt Gingrich, Arthur Brooks and Oprah.

Some lawyers and scholars argue that allowing a non-member to be eligible for the speakership would violate separation of powers principles by, for example, raising the possibility that the President or Vice-President could simultaneously serve as Speaker.  Professor Schaub also argues that a non-member Speaker would conflict with the constitutional text, particularly the fact that “the Constitution vests its specified legislative powers in Congress, composed of a Senate and a House, each in turn composed of members, elected by the people.” Therefore, she argues, “[l]egislative powers cannot be lodged in the hands of a non-legislative person.”

These arguments are not without force, but it seems to me that they largely go to why the House should not, rather than cannot, elect a non-member as Speaker. Schaub may be right that “it simply never occurred to [the Framers] 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.” But Professor Tillman is right that the mere fact that the Framers and everyone else expected the Speaker to be a member is not enough to prove that there is a constitutional prohibition on electing a non-member to that position.

This is particularly true when you consider that the Constitution expressly leaves the choice of Speaker up to the House. The Framers may have very well assumed that the House would never consider a non-member as Speaker except in extraordinary circumstances; it doesn’t follow that they saw the necessity to preclude the House from choosing a non-member under any circumstances.

A strong argument against the constitutional eligibility of non-members would depend on showing that the meaning of the word “Speaker” as used in the Constitution was limited to members of a legislative body. As Professor Rappaport notes, it would be a necessary, but not sufficient, component of this argument to show that the speakers of the British House of Commons and state/colonial legislatures were invariably members of the body.

What about the semantic content of the word “speaker” at the time of the framing? Johnson’s Dictionary gives one meaning of “speaker” as “the prolocutor of the commons,” which is very helpful unless, like me, you have no idea what “prolocutor” means. Fortunately, it defines “prolocutor” as “the foreman; the speaker of a convocation.” And it defines “foreman” as “the first or chief person.” So one might argue that the “speaker” of a legislative body is the first or chief person of that body, and therefore necessarily a member (as the foreman of a jury is necessarily a member). Not a terrible argument, but hardly a slam dunk either.

In short, the question of whether a non-member can be Speaker remains an open constitutional question (the House never having had occasion to address it in a serious way) and the correct answer is less than obvious, at least to me.

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