No matter when Republicans in the House of Representatives finally agree upon a Speaker, this is the second constitutional crisis in two years. Two years ago today, rioters stormed and temporarily occupied part of the U.S. Capitol in wrongful protest of their belief that the 2020 presidential election had been stolen.
The good news is that this crisis is resolvable with the application of some political common sense. Consider a deeper analysis into what is not fully apparent: An interim Speaker of the House may be a viable option to alleviate this crisis.
Article I, Section II of the Constitution specifies that “the House of Representatives shall chuse their speaker.” But the Constitution is silent on the details. No mention is made of how the “chusing” will be done. Will it be by majority or plurality vote? Will it be by some form of appointment or anointment? As political parties are not mentioned in the Constitution, what is their role, if any?
Perhaps surprising to many, the Speaker does not have to be a member of the House. Nor does the Speaker have to be an American. And no age or other requirement is set for qualification.
This is a crisis because, according to House rules and not the Constitution, the House is not formally in session until a Speaker is chosen and committees and subcommittees are assigned. In 1856, it took two months for that to occur. But suppose an extended delay occurred in 2023.
Congress (and many will think this is a good thing) cannot pass any laws. Yes, the Senate can be in session and confirm appointments and conduct its work. But what happens in crises in which a full Congress is needed?
The debt ceiling broaches in early 2023. A national emergency caused by storms or floods could demand federal funding. An adversary could exploit this current state of purgatory to take military action, as Congress cannot declare war with only one House. The list of possible consequences is endless and potentially more damaging than a government shutdown.
The $1.7 trillion omnibus bill passed by the 117th Congress took steps to prevent recurrence of the Jan. 6 riots by updating the 1887 Electoral Count Act. The vice president was given only a “ministerial,” or ceremonial, role, and one-fifth of members were required to challenge electoral votes. Obviously, the House must move to fix this potentially catastrophic constitutional crisis over the Speakership.
The House should consider appointing an interim Speaker, selected by a plurality of votes. In today’s Congress, that could mean a Democrat, Rep. Hakeem Jeffries (D-N.Y.), would be in the chair presiding over a Republican-controlled House. Or the majority party could agree on an interim Speaker through any number of means.
Of course, an interim Speaker is an imperfect solution if a long-term Speaker cannot be selected. The advantage is that Congress would not be impotent to act.
But with today’s politics so divided and divisive, a further and greater crisis has been overlooked.
Is the Constitution, based on divided government and checks and balances, fit for purpose in America today? One of the reasons for voting against Rep. Kevin McCarthy (R-Calif.) for Speaker is to return the House to 2016 when regular order and floor debate on offering amendments occurred. Dissidents do not want the Rules Committee to force legislation through without any consideration, which is often what happens.
Further, members of Congress are dominated by and so dependent on their party for election and reelection that constituents who are independents or members of the opposing party have virtually no priority in representation. And no agreement exists on constitutional questions regarding the First and Second Amendments or abortion, among other questions.
Amending the Constitution is politically implausible. Thus, corrective action by law or rule change is the only course. An interim Speaker is a temporary solution if the House is unable to act within a certain time frame, say, 10 working days. Or, should a crisis arise, an interim Speaker could be selected on an emergency basis so that the House will be in session. Failure to do so could lead to a crisis far worse than Jan. 6.
Harlan Ullman is senior adviser at the Atlantic Council and the prime author of “shock and awe.” His latest book is “The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large.” Follow him on Twitter @harlankullman.