Tomorrow, at approximately noon, the newly elected members of the House of Representative for the 118th Congress will gather to vote for the Speaker of the House. Until the Speaker is elected, the House can do no other business. Right now, according to the New York Times, it is unclear whether Kevin McCarthy (R-CA) has the votes necessary to win as Speaker. How does this all work, let me explain.
What is the Speaker of the House?
The Speaker of the House is an office created by Article 1, Section 2 of the Constitution. The Constitution provides literally no detail about the powers of the Speaker, only that the office shall exist: “The House of Representatives shall chuse [sic] their Speaker and other Officers.”
Despite the lack of definition of the power of the Speaker, a capable Speaker of the House is essentially able to run the House of Representatives. The Speaker controls two important things: (1) the calendar and (2) the Committee assignments of members. With control of the calendar, the Speaker can make certain that only bills that the Speaker wants to see pass will get a floor vote. With control of Committee assignments, the Speaker can make or break a Representative’s career. Rural Representatives want to be on committees with jurisdiction over agricultural matters. Representatives in districts with big military bases want to be on the Armed Services Committee. Everyone wants to be on the Ways & Means Committee (which writes tax laws). Finally, the Speaker gets to put the most personally loyal members on the Rules Committee, which decides the “rules” under which bills are considered on the floor of the House — such as how much debate is allowed and how many amendments will be considered.
Putting aside partisan politics, retired Speaker Nancy Pelosi was the most successful Speaker of the last fifty years. She was phenomenally good at counting votes. I cannot remember a single time in the last Congress (when the Democrats held only a five vote majority) when she had to withdraw a bill from the floor because it was not going to pass.
What does it take to become Speaker of the House?
In order to be elected Speaker of the House, one person must win a “majority of the Members-elect voting by surname, a quorum being present.”
Very funny, what does that mean in English?
It means that the Speaker has to win the majority of the people who vote for a person. A Representative who does not show up does not count for determining the number of votes needed to win. Nor does a Representative who votes “present”, rather than for someone by name.
Are there any newly-elected members who will not show up?
There is at least one newly-elected member who will not show up: Rep. Donald McEchin (D-VA) died of colon cancer on November 28, 2022, after he had won re-election. Jennifer McClellan won the Democratic nomination to replace Rep. McEchin on December 23, 2022. She will almost certainly win the Special Election that will be held on February 21, 2023, as Rep. McEchin won re-election by 23%. But she will not be present for the election of the Speaker.
Are there any other newly-elected members who will not show up?
So far, it appears that every other newly-elected member will show up to vote.
So how many votes does Kevin McCarthy need to win?
If everyone shows up to vote casts a vote for an individual, Rep. McCarthy would need 218 (out of 434 votes).
That seems simple, is there more?
Yes, this is where it gets complicated. There are 222 Republicans who will be sworn into the 118th Congress. This means that Rep. McCarthy can be stopped from becoming speaker by a determined bloc of five or more Republicans.
Right now, there are at least five Republicans who have publicly opposed Rep. McCarthy becoming Speaker: Matt Gaetz (FL), Ralph Norman (SC), Andy Biggs (AZ), Bob Good (VA) and Matt Rosendale (MT). A few others, such as Lauren Boebert (CO), have indicated that they are unlikely to vote for Rep. McCarthy. Seven additional conservative members have stated that they will not vote for Rep. McCarthy without major concessions.
So, who will they vote for?
That is part of where it gets messy. Rep. Andy Biggs ran against Rep. McCarthy in the Republican Caucus (just Republicans voting) for the Speakership nomination. McCarthy won 188 - 31. Rep. Biggs name will be put forward tomorrow. He has stated that he will vote for himself. If his four fellow “hard no” votes follow suit and vote for Biggs, then McCarthy cannot win.
Alternatively, up to 9 Republicans could vote “present.” If they did, the total number of votes would be 425 (rather than 434) and it would only take 213 votes to win as Speaker. If every other Republican fell in line and voted for Rep. McCarthy, he would have 213 votes and win as Speaker.
Is there any chance that a Democrat could end up as Speaker?
It would take a GOP failure of epic proportions for Hakeem Jeffries (D-NY) to end up as Speaker. Rep. Jeffries will have the support of 212 Democratic Members. Assuming that no GOP Representative votes for him, that means Rep. Jeffries could only win if the total number of votes were 423 (or less). That would require 11 Republicans to vote “present” rather than for a candidate (Jeffries 212, McCarthy 211, Present 11). Even if Rep. Jeffries got 212 votes, Rep. McCarthy got 200 votes and Rep. Biggs got 22 votes, there would be no winner.
What happens if no one wins?
Nothing. The House of Representatives literally grinds to a halt.
Has that ever happened?
Yes. The most recent times were 1856 (when there 129 separate votes for Speaker before someone was elected) and 1849 (when there was no Speaker for 19 days). Here is a link to every time there have been multiple elections for Speaker.
If Rep. McCarthy Cannot Get Enough Votes, Who Is Likely To Replace Him
No one has stepped forward as a possible replacement for Rep. McCarthy. The NY Times has listed four Republicans to watch if McCarthy cannot get across the finish line: Steve Scalise (LA), Jim Jordan (OH), Patrick McHenry (NC) and Elise Stefanik (NY).
I would add a fifth possible Republican: Former President Donald Trump. As I set forth in this earlier post, FPOTUS might run, thinking that holding the office of Speaker would make it more difficult for the Department of Justice to indict him.
Since I wrote that column, FPOTUS has been on a losing streak of epic proportions. The 11th Circuit ended the Special Master process, meaning Special Counsel Jack Smith has a clear runway. The Republicans barely squeaked out a majority in the House in the 2022 midterm elections. Polls for the 2024 GOP Presidential nomination have moved away from FPOTUS and towards Gov. Ron DeSantis (R-FL).
Can Trump Do That, Since He Is Not A Member Of The House?
Yes. There is no requirement in the Constitution or the House Rules that the Speaker be a member of the House.
What Will Happen?
The only thing that I know for certain about the future is that it has not happened yet. I have no idea what will happen. We’ll see.
https://law-and-politics.online/web/@Teri_Kanefield/109625795640624270
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Anyone can be Speaker of the House?
I will toss my hat into the ring then! 😁☺️