The Speaker of the House Clause

The House of Representatives shall chuse their Speaker and other Officers. . . .

—C. Towner French

Introduction

The people elect the members of the House of Representatives, and the members in turn can choose their Speaker and other officers. Unlike earlier practices in England, the Executive has no role over the selection of the Speaker. Over the centuries, the role of the Speaker of the House has evolved. The Speaker has gained and lost powers and duties as the issues of the day have moved Representatives to grant or remove them. Generally, the courts treat the selection of the Speaker and other House officers as political questions that are not subject to judicial resolution.

English Practice

The “Speaker of the House” position has a long history that dates back in England to at least 1377, when the Rolls of Parliament first noted that Sir Thomas Hungerford was Speaker of the House of Commons.¹ Over time, various English kings sought to control Parliament by influencing the choice of the Speaker when Parliament was in session. During the Tudor era (1485–1603), the influence of the House of Commons “reached its lowest point.”² In a period when the monarch dominated the government, the sovereign could exert greater control over Parliament. In particular, this control could lead to greater taxation and other streams of revenue to fund the monarch, the civil list, and the military list as well as taxation, appropriations, and spending outside of parliamentary control and even parliamentary scrutiny.³

Starting in the seventeenth century, the House of Commons began to assert full control of the selection of a Speaker.⁴ This process would continue as the House of Commons fought for independent legislative power. Eventually, the House of Commons won the right to select the Speaker without hindrance from the Crown.⁵ As a formality, the monarch confirmed, and to this day confirms, the Commons’ choice of Speaker. Not since the late seventeenth century has a monarch, for political reasons, dared to challenge the House of Commons’ selection of a Speaker.

Colonial and Articles-Era Practice

Before American independence, the selection of the Speaker in colonial lower legislative houses mirrored the earlier British process. Although colonial assemblies chose their own Speakers, the colonial governors appointed by the Crown often sought to control the result and also claimed the power to reject candidates put forward by the lower house.⁶

Following independence, the Articles of Confederation created a unicameral legislature. Article IX authorized the Congress “to appoint one of their number to preside, provided that no person be allowed to serve in the office of president [of Congress] more than one year in any term of three years.”⁷ This position was referred to as the “president.” The root of the word “president” is “preside,” and the President of the Articles Congress generally performed the sorts of duties that a presiding officer would perform in a legislative body. The President was perhaps akin to the modern Speaker of the House in that respect.⁸

One of the more influential state constitutions was the Massachusetts constitution of 1780. It provided that “the House of Representatives . . . shall choose their own Speaker, appoint their own officers, and settle the rules and order of proceeding in their own House.”⁹ The words “their own” emphasized that the legislature was free from the gubernatorial control under which colonial assemblies had struggled.

The Constitutional Convention

At the Constitutional Convention, the Framers drew on the Massachusetts model. Several drafts from the Committee of Detail gave the House of Representatives the power to choose its own Speaker and other officers.¹⁰ On August 6, 1787, the Committee of Detail delivered its proposal, which provided that the House “shall choose its Speaker and other officers.”¹¹ On August 9, this provision was adopted unanimously without any recorded debate.¹² No further substantive changes were made.¹³

The succinct language of the Speaker of the House Clause established the House’s power to choose its leadership free from the influences of Executive and Senate power. The Speaker was now an internal House of Representatives officer, relieved of the burden of pleasing the Executive as a prerequisite for assuming the Speakership. The Appointments Clause in Article II does not permit the President to appoint the Speaker or the holders of non-apex legislative positions.¹⁴ The clause also permits the House to appoint the holders of other, non-apex legislative positions, such as the Clerk of the House.¹⁵

Selecting the Speaker

The House of Representatives elects its Speaker as the first order of business at the start of each two-year term or when a Speaker dies or resigns during the legislative term.¹⁶ The practice is customary, for it occurs before the House formally adopts its rules of procedure for the legislative term. Until 1839, the House elected the Speaker by ballot, but since that year, elections for Speaker have been conducted by roll call.¹⁷ With a roll call, each member’s name is called out, and the member announces his or her vote.

The party caucuses, however, attempt to predetermine the result by meeting and selecting the candidates to be voted upon. The successful candidate must obtain a majority of the votes cast. When there is no majority, the House continues to vote until someone wins a majority. A Speaker election has proceeded to multiple ballots sixteen times, thirteen of which were before the Civil War.¹⁸ The possibility of multiple ballots arises only when party discipline breaks down or a third party has sufficient strength.

On two occasions, the House has agreed by resolution to allow a Speaker to be elected by a plurality. The resolution of both contests required agreement from a majority of the whole House. In 1849, there were sixty-three failed ballots, and in 1856, when neither party controlled the House, there were 133 failed ballots.¹⁹ That Speaker election lasted for two months before Nathaniel Banks, a Massachusetts Republican, was elected by a plurality.²⁰ In 1923, when the Progressive Party held a number of seats, the House took nine ballots before Frederick Gillett, another Republican from Massachusetts, received a majority of the votes.²¹

In January 2023—for the first time in 100 years—the House required more than one round of voting to elect a Speaker. It took fifteen very public rounds of voting over the course of five days. Kevin McCarthy, a California Republican, received a majority vote from the members of the House. During this contested process, there were traditional backroom discussions.²² However, many negotiations with various factions of McCarthy’s own party were publicly captured during live telecasts while other Republicans made demands, concessions, and suggestions through social media.

Ten months later, in October 2023, there was another contested Speaker election that stretched nine days after the House voted to vacate McCarthy’s speakership. It was the first time an incumbent Speaker had been removed during an active session.²³ Mike Johnson, a Louisiana Republican, was elected after the fourth ballot.

The Speaker’s Powers

The Constitution does not define the Speaker’s powers. Those authorities would be developed through practice. The first Speaker, Frederick Muhlenberg, led a House of Representatives that was devoid of parties.²⁴ As Speaker, Muhlenberg attempted to construct the basic institutions of government described in the Constitution.²⁵ Even during the first session of Congress, the Speaker assumed a critically important power: the ability to appoint members of the House to the various committees.²⁶ In the early nineteenth century, Henry Clay demonstrated the extraordinary power that an active Speaker could assume by skillfully filling committees to build support for his preferred policies.²⁷

Unlike British practice or the President Pro Tempore of the Senate, the Speaker of the House is the primary legislative leader of the body.²⁸ As the leader of the majority party, the Speaker declares and defends the legislative agenda of the majority party, but the Speaker traditionally refrains from debating, voting, or introducing legislation in most circumstances.²⁹

By the early twentieth century, the Speaker was widely considered to be the second most powerful person in Washington after the President. He possessed the power to appoint members and chairmen of all committees. The Speaker, who also chaired the House Committee on Rules, was able to control the timing and content of bills brought before the House.³⁰ However, in 1910, that authority was significantly diminished during a revolt orchestrated by progressive Republicans and Democrats against Speaker Joseph Cannon (R–IL).³¹ As a result of the uprising, the House voted to remove the Speaker’s power to chair the Rules Committee. Chairmen would now be appointed primarily by reason of seniority.³² Thereafter, the chairmen of the various committees became the center of power.

This trend would change in the 1970s when Congress undertook a comprehensive legislative reorganization that restored several of the Speaker’s prior prerogatives.³³ But in modern times, the Speaker does not sit on any standing committees in the House.

“Other Officers”

The Constitution empowers the House to “chuse their . . . other Officers.” On April 1, 1789, in one of its first actions, the first House of Representatives chose the first Clerk.³⁴ The Clerk of the House serves as the presiding officer until the election of the new Speaker and is empowered to “call the House to order, preserve order and decorum, and decide all questions of order subject to appeal by any Member.”35 The House elects its other officers, such as the Sergeant-at-Arms, Chief Administrative Officer, and Chaplain.³⁵ However, under current rules, the Speaker can appoint the Historian of the House, the General Counsel, and the Inspector General.

Courts have afforded discretion to the House in appointing its officers. In Murray v. Buchanan (1983), the D.C. Circuit dismissed an Establishment Clause challenge to the payment of salaries to chaplains of the House of Representatives and the Senate.³⁶ Judge George MacKinnon concurred in the dismissal, laying out “the constitutional and unique historical base which supports [the] decision.”³⁷ In MacKinnon’s view, the decision to compensate chaplains “is a judgment made pursuant to and in execution of the powers conferred on the Senate and the House [under Article I, Section 2, Clause 5] to ‘chuse their . . . officers’ and to ‘determine the Rules of [their] proceedings.’”³⁸ (See Essay No. 26.) Because these powers were textually committed to Congress by the Constitution, the political questions doctrine barred legal challenges to their exercise.³⁹

Open Question

Historically, the Speaker has always been a member of the House.⁴⁰ In 1997, 2013, 2015, 2019, 2021, and 2023, some House members voted for candidates who were not then members of the House, including several sitting Senators. Whether a non-member can serve as Speaker remains an open question.

1. John Smith Roskell, The Commons and Their Speakers in English Parliaments, 1376–1523, at 157 (1965). ↩︎
2. 1 Josef Redlich, The Procedure of the House of Commons: A Study of Its History and Present Form 33 (1908). ↩︎
3. Paul Einzig, The Control of the Purse: Progress and Decline of Parliament’s Financial Control 50–55, 74 (1959). ↩︎
4. History of the Speaker, Legislative Assembly of Manitoba, https://perma.cc/78PP-6GQ6. ↩︎
5. Id. ↩︎
6. Jack P. Greene, The Quest for Power: The Lower Houses of Assembly in the Southern Royal Colonies, 1689–1776, at 206–07 (1963); Mary Patterson Clarke, Parliamentary Privilege in the American Colonies 61–92 (1943). ↩︎
7. Articles of Confederation, art. IX, § 5. ↩︎
8. Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution Part IV: The “Office . . . Under the United States” Drafting Convention, 62 S. Tex. L. Rev. 455, 478 (2023). ↩︎
9. Mass. Const. of 1780, ch. 1, § III, art. X. ↩︎
10. 2 Farrand’s 154, 158, 165. ↩︎
11. Id. at 179. ↩︎
12. Id. at 231. ↩︎
13. Id. at 566, 591, 652. ↩︎
14. Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 444–48 (2023); Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part VI: The Ineligibility Clause, 64 S. Tex. L. Rev. 209, 218–19 (2025). ↩︎
15. Josh Blackman & Seth Barrett Tillman, Offices and Officers of the Constitution, Part II: The Four Approaches, 61 S. Tex. L. Rev. 321, 389 (2022). ↩︎
16. Richard S. Beth & Valerie Heitshusen, Cong. Rsrch. Serv., RL30857, Speakers of the House: Elections, 1913–2015, at 1 (2015). ↩︎
17. Id. ↩︎
18. Speaker Elections Decided by Multiple Ballots, U.S. House of Representatives, History, Art & Archives, https://perma.cc/H3MY-BGFJ. ↩︎
19. Id. ↩︎
20. Jeffrey A. Jenkins & Timothy P. Nokken, The Institutional Origins of the Republican Party: Spatial Voting and the House of Speakership Election of 1855–56, 25 Legis. Stud. Q. 101, 102 (2000). ↩︎
21. Beth & Heitshusen, supra at 2. ↩︎
22. Lindsey McPherson et al., McCarthy Wins Speaker Election, Finally, Roll Call (Jan. 7, 2023), https://perma.cc/J57V-XUU2. ↩︎
23. John T. Bennett, McCarthy Becomes First Speaker in History Ousted, Roll Call (Oct. 3, 2023), https://perma.cc/6VMZ-3KT8. ↩︎
24. The First Speaker of the House, Frederick A.C. Muhlenberg of Pennsylvania, U.S. House of Representatives, History, Art & Archives, Historical Highlights, https://perma.cc/GR4H-8H8Q. ↩︎
25. Randall Strahan et al., From Moderator to Leander: Floor Participation by U.S. House Speakers, 1789–1841, 30 Social Sci. Hist. 51, 56 (2006). ↩︎
26. Eric D. Lawrence et al., The Politics of Speaker Cannon’s Committee Assignments, 45 Am. J. of Pol. Sci. 551, 551 (2001). ↩︎
27. Randall Strahan et al., The Clay Speakership Revisited, 32 Polity 562, 580 (2000). ↩︎
28. Art. I, § 3, cl. 5. ↩︎
29. Lawrence et al., supra; Valerie Heitshusen, Cong. Rsrch. Serv., 97-780, The Speaker of the House: House Officer, Party Leader, and Representative 7–8 (2017), https://perma.cc/5W9M-UAXL. ↩︎
30. History of the Chairs of the Standing House Committee on Rules, Committee on Rules, U.S. House of Representatives, https://perma.cc/JC3B-KJPX. ↩︎
31. Too Fast Too Furious: Uncle Joe Gets Driven Out, U.S. House of Representatives, History, Art & Archives, https://perma.cc/Q7CC-JVS7. ↩︎
32. Susan M. Miller & Peverill Squire, Who Rebelled? An Analysis of the Motivations of the Republicans Who Voted Against Speaker Cannon, 41 Am. Pol. Rsch. 561 (2012). ↩︎
33. James D’Angelo & David King, The Legislative Reorganization Act of 1970, Cong. Rsrch. Inst. (Nov. 12, 2023), https://perma.cc/S4QS-DQXJ. ↩︎
34. 1 Annals of Cong., 1st Cong., 1st Sess. 100 (1789); Tillman & Blackman, Offices and Officers of the Constitution Part II, supra at 321, 335–36. ↩︎
35. Beth & Heitshusen, supra at 16. ↩︎
36. 720 F. 2d 689, 690 (D.C. Cir. 1983). ↩︎
37. Id. at 690–91 (MacKinnon, J., concurring). ↩︎
38. Id. at 697. ↩︎
39. Id. at 691, 697. ↩︎
40. Speaker of the House, U.S. House of Representatives, History, Art & Archives, https://perma.cc/J4LZ-T4R9. ↩︎