Should an Election Denier Be Speaker of the House?
The Constitution matters more than Kevin McCarthy.
From the apparent chaos of the Republican party’s effort to select a speaker of the House there has emerged an opportunity to achieve a victory for a politics of moderation and constitutionalism.
A faction of the House Republican conference is reportedly maneuvering to secure promises from Kevin McCarthy to enhance its political power, backed up by the threat of finding a leader even more compliant than the California congressman. Meanwhile, some Democrats see political advantage in the outsized influence that extreme members of the GOP will have in the selection of the next speaker, as it’s an opportunity to put GOP extremism on vivid display.
These dynamics have each faction and each party looking out for their own interests. But is there a path forward that would be better for the nation as a whole? Out of this political chaos could there be hope for a kind of constitutional restoration?
The speaker is supposed, at least some of the time, to speak institutionally for the whole House of Representatives, which in turn represents the whole nation.
It’s true that in modern practice the speaker is most often little more than the leader of the majority party in the House. But the speaker is not supposed to be merely a party leader. The role of speaker is different from that of majority leader. One sees this in the fact that the speaker is an officer of the whole House not of one political party.
And one sees this in the fact the speaker is a constitutional office, mentioned explicitly in Article I and in the Twenty-fifth Amendment. And in the fact that he or she is second in line for succession to the presidency: If there is no president and no vice president to succeed to the office of the presidency, the speaker of the House becomes the acting president.
In his speech and action, Kevin McCarthy has shown no evidence that he cares about the constitutional order. His focus is entirely on the political prospects of his party. His preoccupation is understandable for a party leader. But he now seeks to be elevated from a partisan to a constitutional officer without demonstrating any evident sense of the national responsibility the new role entails.
Quite the contrary.
This is the first election for speaker of the House since the events of January 6th, when a violent mob attacked Congress in an attempt to overturn a constitutional election and the peaceful and constitutional transfer of power.
The new speaker—the first post-January 6th speaker—should not be an election denier. The new speaker should not be any of the 147 representatives and senators who went along with the mob and voted to reject the electors from Arizona and Pennsylvania. The constitutional officer second in line to the presidency should not be someone who tried to overturn the last election for the presidency.
The new speaker will presumably be a Republican, as Republicans (narrowly) won control of the House. But it needn’t be a bitterly partisan Republican. And consistent with the role as a constitutional officer for the whole lower chamber, the speaker need not be a sitting member of the House, although there’s probably a prudential case for its being someone who is or was recently a member.
There are plenty of Republicans who did not vote to overturn the election results who could serve as speaker. One thinks of sitting members respected by their Republican and Democratic peers, like, Michael McCaul or Patrick McHenry. One can also think of recent Republican members of the House like Barbara Comstock, Charlie Dent, and Will Hurd and, of course, Adam Kinzinger and Liz Cheney.
Five or more Trump loyalists seem poised to deny Kevin McCarthy the office he covets as they seek to deepen the Trump influence on governance in America. Surely now is the time for five or more public-spirited Republican House members to seize this opportunity to reach out to Democrats to do the right thing.
And this is a time for the Democratic caucus to reach out in turn. Together they could secure a speaker who would not be an embarrassment at best, a threat at worst, to the constitutional order.
This is also an opportunity to restore some of that older understanding of the speakership by having a somewhat bipartisan selection of an officer who would not manage either party’s agenda (leaving that to the majority leader and minority leader), but instead would administer the House in a fair way. As the guide to the House rules states: “The Speaker’s role as presiding officer is an impartial one, and [his or her] rulings serve to protect the rights of the minority.” And restoring the forgotten constitutional role of the speaker as an officer above party would also be an opportunity to begin a recovery from the past six years—offering a chance for a first step on the long and arduous but crucially important path toward restoring civility, decency, and constitutionalism to the center of our politics.
Is the Democratic caucus in the House willing to go down this path of statesmanship? Are there enough Republicans willing to demonstrate some courage? If so, January 3, 2023, could be a hopeful inflection point rather than a depressing spectacle in a continued decay of our constitutional order.