Wednesday, October 07, 2015

A Vacant Speakership?

Gerard N. Magliocca

Next month the House of Representatives will choose a new Speaker after John Boehner resigns.  Or maybe not.  A faction of the Republican caucus is not inclined to support House Majority Leader in their internal race.  Suppose those dissenters are able to deny him a majority on the floor when he runs against Nancy Pelosi.  What would happen then?

The answer is that the House would be without a Speaker.  This happened several times in the 19th century in situations where no party held a majority, but an extended vacancy in the Speakership has not occurred in modern times.  What is the consequence of a vacancy in the Speakership that occurs in the middle of a Congress?

The answer, I think, is that John Boehner can simply pick the Acting Speaker on his way out the door.  The Rules of the House state:
"In the case of a vacancy in the Office of Speaker, the next Member on the list described in subdivision (B) shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

(B) As soon as practicable after the election of the Speaker and whenever appropriate thereafter, the Speaker shall deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore under subdivision (A)."
Thus, it is possible for the House to simply have an Acting Speaker (or Speaker Pro Temper) for the remainder of this Congress if the House cannot muster a majority for any candidate.  (What happens if Boehner fails to give the Clerk a list is unclear.)  

UPDATE:  Now that the Majority Leader has dropped out of the race, the problem gets worse. 


My understanding is that Boehner's resignation doesn't take effect until a new Speaker is chosen.

Well, he says that now, but he can resign when he pleases.

This is why somebody should make that privileged motion to vacate the chair. It's dangerous enough when somebody in a leadership position announces their retirement simply because they figure they've been around long enough, and want to retire. But that's not the situation here, Boehner is being forced out, and he's freed himself to screw over the party that's forcing him out.

They should immediately vacate his position, and then conduct the leadership fight with him deprived of his power to betray them.

Perhaps Speaker Bo(eh)ner should submit a list naming Nancy Pelosi Interim Speaker upon his retirement. After all, she has experience as Speaker. Though it probably wouldn't take long for Republicans to agree upon a new Speaker. Good strategy - and sweet revenge?

Ending public service before your term is up seems to be a thing these days.

I'm not sure how "dangerous" it is for people in leadership to retire like this though personally I think people should serve out their terms. Not sure what "danger" of "betrayal" there really is. He has served his purpose as a party tool so far and it would do him good to not burn his bridges. In fact, there is some debate over the nature of the timing. There is a theory, e.g., that he is resigning now to better set up his future as a lobbyist.

It would seem perfectly logical for leadership to be pressured to resign when the person no longer serves the people they represents as they wish. If we like democracy and all. They can announce their retirement day and thus allow a smooth transition. This is normal behavior. And, what power exactly does he even have to "betray" the party?

Shag's idea makes sense too. But, perhaps Pelosi is too good at the job given the other party's distaste of sound government.

Though it probably wouldn't take long for Republicans to agree upon a new Speaker. Good strategy - and sweet revenge?

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Pro Temper is nice, but the Acting Speaker would really be be Pro Moribus. That's all the GOP does these days.

Things just became more interesting.

Boehner and the GOP leadership's favored candidate, Kevin McCarthy, just withdrew and Boehner postponed the vote.

It appears that McCarthy could not obtain a majority of the GOP caucus after his bone-headed comments linking the Benghazi select committee with Clinton's collapsing poll numbers.

Now who is the GOP establishment going to back?

Does the Speaker have to be a member of the House? GOP House members who wish to be Speaker suffer from political laryngitis. So Pelosi may not be a bad idea. Our own MRO might beat the drums for his mentor Tom-Tom Tancredo, a former House member , if eligible, who may need work.

Boehner got the boot because he was too friendly with Pelosi. Even for you it's a bit much to hope that Republicans will hand the Speaker's gavel to the Democrats while they still have the majority.

Though doing so might have advantages. Let the Democrats have the Speakership, and then the Republicans could elect their own leader with just 51% of their own caucus, and they'd still have just as many votes.

But, to answer your question, no, the Speaker doesn't have to be a member of the House.

"too friendly with Pelosi"? You mean doing some degree of compromise required for governing? I guess it's how you phrase things. This included needing to form a coalition, as was intended by many of the Founders who didn't like parties (if we care about the Founders as some seem to do), of some Democrats and Republicans to pass certain bills. 51% of the Republicans there could not agree on something.

"Although the Constitution does not require the Speaker to be a Member of the House, all Speakers have been Members."

The requirement that the Speaker be a member is one of those unwritten rules that the author of the post has spoken about over at Concurring Opinions in the past.


No, I mean as in, "Get a room!"

There's a certain amount of compromise needed for governing, but this nation needs, Republicans think, a lot less governing than is being imposed upon it. And Democrats should be required to do a bit more of that compromising, being the minority.

As for unwritten rules, as the saying goes, they're hardly worth the paper they're written on. In Washington, even written rules barely mean anything, why would unwritten rules be iron clad?

Brettt's unwritten rule "observation" recalls conservatives' Saint Ronnie Reagan's unwritten Republican rule that has been trashed by the still standing GOP Clown Limo candidates, especially their overcombed leader. Is this too hairy even for Brett, now apparently conservative but once a self-proclaimed anarcho libertarian?

And Brett's "No, I mean as in, 'Get a room!'" demonstrates once again his Humpty-Dumptyness.

I'm still catching up on events after a long lunch and noted an item at Huffingon Post that suggests Majority Leader Kevin McCarthy perhaps did "Get a room" (with another Republican, i.e., not crossing the aisle) which may have led to his withdrawal - as Speaker candidate. Perhaps Brett had read this but confused the "alleged" parties.

"and noted an item at Huffingon Post that suggests Majority Leader Kevin McCarthy perhaps did "Get a room""

The fascinating thing about this, is the way it became public. As in, by way of an edit to Wikipedia that was made from a DHS address.

Brett, it isn't just the Huffington Post. Just Google - Kevin McCarthy affair - and there are a number of hits. But what's fascinating -but fun for me - is that the recent history of House Republican leadership* in "keeping the piece" was apparently lost on Kevin from Heaven. And as I understand it, an NC Republican House member had some advice for Kevin from Heaven, and others, about skeletons in closets, presumably involving another NC Republican House member. There was a reference elsewhere to this being a long-standing secret. Brett, you're close to NC; were you aware of this, you old horn dog?

*Gingrich, Livingstone, etc.

While I don't know all the particulars, it's been common knowledge among informed Republicans for quite some time, (At least since the mid 90's.) that the Republican leadership in Congress are disgusting slime, and subject to being blackmailed. It's one of the reasons Republicans want a wholesale change of leadership. They'd like some leaders who can't be forced to take a dive by threats to reveal their dirt. They'd like some leaders who aren't moral monsters. Naturally, the monsters see holding onto power as their only defense.

Democratic leaders are slime, too, of course, but it's hard to blackmail people when their base knows they're disgusting monsters, and don't care. So your party has that going for it. Republicans actually care if their elder statesmen are rapists and pedophiles. Democratic leaders can visit Jeffrey Epstein’s 'fantasy island', or have prostitution rings run out of their appartments, and you don't care. You just blow it off.

Seriously, if you follow the news from England about the pedophile ring in government, keep in mind the same thing is going on here. Our press are just more compliant about keeping a lid on it.

Brett, you've convinced me you are no longer an anarcho libertarian. But as a 2nd A absolutist just plain vanilla moral and principled Republican, what is your solution for Sex in the District? As JEB? (aka Dumberbro) says, "Stuff happens." As Ben Carson says, "Rush those sinners." As to Carly Fiorina, check out the Daily Mail for his first and second marriages. Who else you got besides the Donald? According to the polls, Republicans strongly support Trump, Fiorina and Carson. A wholesale change of leadership?

I don't mind them having voluntary sex with fellow adults. (And no, Jeb didn't say "stuff happens". Just your standard deceptive edit.) Pedophilia and rape? I very much mind that.

Republicans aren't being blackmailed over, and Democrats getting away with because their base doesn't care about, consensual adult sex. We're talking more Caligula territory here, in addition to the usual bribery and extortion that made Congress "America's only native criminal class" even back in Twain's day.

What's the answer? I think we need the sort of wholesale political bloodbath among the 'leadership' that will deprive them of the power to keep the corrupt system going. The whole gang needs getting rid of.

That, I think, is what Democrats don't understand about the relationship between the Republican base, and the party establishment. The Republican base HATE the party establishment. Despise them. And it's mutual.

It's reaching the point where a good deal of the base would be glad to see the Republican party die, and start over from scratch, if it just got rid of the people currently in charge. While the people in charge would rather the Democratic party take over, than let their own party's base get what they want. They have more in common with the Democratic leadership than their own party's base.

It's a very dysfunctional relationship, it can't go on this way much longer.

A reminder that the Republican base Brett refers to is former Democrats from the former slave states that switched to the GOP following Brown v. Bd. of Educ. (1954) and the civil rights movement that followed culminating in the Civil Rights Acts of the mid-1960s. Some have referred to this base as the "Immoral Majority" for reasons noted in Sex and District comments above.

Query: Is Brett's "political bloodbath" Humpty-Dumpty for something beyond the political? Maybe there's an Elmer Gantry waiting in the Republican base's wings (angelic?).

"former Democrats from the former slave states that switched to the GOP following Brown v. Bd. of Educ."

What, like Robert Byrd? Nah, that's been well established to be a myth. The Dixicrats just died out with the passage of time, and the Democratic party held the South until they were gone.

Brett's history is worse than our own MRO's and ignores the efforts even currently in the former slave states to diminish voting rights of Blacks, all in fear of the changing demographics: Demographics is destiny.

You mean, such as reducing early voting in N.C. to only several weeks more than is available in Democrat controlled N.Y.?

I think the early voting rights activists would be embarassed by what today's Democratic activists like to pretend is vote suppression.

Did you forget about closing down DMVs in districts with majority Black voters? And the instantaneous reactions of several former slave states following Shelby County with new restrictions?

Actually, I looked that up: Alabama closed the DMV in the 30 least populous districts, which included some of the most lily white districts in the state, while actually making exceptions for some of the low population districts that had higher percentages of blacks. With the result that the list was weighted towards whiter than average, rather than blacker than average, districts.

You could with slightly greater justice have claimed they were discriminating against white voters, but the truth is, they were just closing DMVs that served extremely small numbers of people. Seriously, my college dorm had more residents than some of those counties.

But, yes, they did close the DMV in "Every county with more than 75% blacks registered." All two of them. They also closed the DMV in the whitest county in the state.

Note that I'm not saying what they did was good, in fact I suspect we're looking at "Washington Monument Syndrome" here, where a bureaucracy responds to budget cuts by maximizing instead of minimizing the pain.

I'm just saying that the evidence does not support a racial motive. And accounts have to have very carefully avoided certain details of what happened in order to create that impression.

I appreciate Brett's second thoughts after 16+ hours following his review of the K-K-K-K-Katy news report on 'Bama's DMV actions. Perhaps it was this from his earlier comment:

"You could with slightly greater justice have claimed they were discriminating against white voters, ...."

that his conscience (and a good night's sleep) inspired a follow up.

As to the evidence, we are not yet into the court of law stage of 'Bama's efforts. Rather, there is evidence in the court of public opinion as this action comes fairly shortly after Shelby County. Pre-Shelby County, the 'Bama changes would have had the hurdle of clearing the DOJ. Coincidence? I'm confident that white 'Bamans heard loud and clear the actions taken by 'Bama's white elected political leadership.

Brett, in playing Humpty-Dumpty, keep in mind what happened to him. (By the Bybee [expletives deleted], he wasn't pushed.)

But I do appreciate what Brett is "not saying" as well as what he is "just saying."

Regarding electing a non-House metmber as Speaker, check out the Originalism Blog's post today on an article by Diane Shaub who says "No." And for what it's worh, Michael Ramsey agrees. Poor Newt will have to rely upon another gig with Fox. (Now just why did Newt resign as Speaker?? Did his Contract on American run out?)

I personally think it would make the best sense, using various means of interpretation, that the Speaker should be a member of the House. It would be to me a "common sense" approach but as shown by a dissenting party linked at Shag's source as well as Prof. Levinson in the past (though he can be wrong; with respect, I think he is at times), there are others with an alternative viewpoint.

In the thread of the preceding post by Gerard, I made reference to the statutory interpretation/construction canon Noscitur sociis in response to our own MRO's canon he thought governed King v. Burwell. I'm not sure if the Court has applied such statutory canons, but the principle of Noscitur sociis would seem to support Diane Shaub's interpretation/construction of the Constitution on the subject of a non-member Speaker. While she is a "mere" political scientist, she provides a logical and a good sense argument in her article. Her article is quite short (thank you, Prof. Shaub!) and is a reminder that other than legal scholars can be adept at interpreting/construing the Constitution.

Speaking of Sandy, he hasn't posted here for a while. I thought of this when I read that TX now provides for carry on the UT campus. I don't know if Sandy has returned to UT from gigs at other law schools. I recently heard that a Prof. Emeritus at UT recently resigned because of this campus carry rule (which is limited to state schools). Then I asked myself, if I were on the faculty at UT, would I deign to speak up in protest? I'm not suggesting that Sandy address this. But it's an uncomfortable situation, especially when discussing a constitutional issue can get dicey. Although it did not involve a ConLaw course, think of "The Paper Chase." Unfortunately "paper, rock, scissors" don't stop guns. (Not to mention grading disagreements.)

As a follow up to my last comment, it was heartwarming to learn of the UT Alumna's reaction to campus carry. They hit the Glock-in-the-jock guys where it hurts: their egos. BRAVA!

Correction: Her name is Diane Schaub. Over at the Originalism Blog, Mike Rappaport says its an open question regarding whether the Speaker has to be a House member. Now Dick Cheney's name is being bandied by some of the crazies as Speaker. Query: Would that constitute torture?

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