It seems like a million years ago, but the successful effort to remove Speaker McCarthy and the fight over who should serve in that office laid bare significant problems with how the House operates in the absence of a Speaker. These problems, should a vacancy reoccur, may arise in the midst of another crisis — whether an existential threat or mere political strife — and the House must get ready now. Should the House create a Speaker pro emergency? How might that office be different from an acting Speaker pro tempore? Let’s dig in.
Some preliminary throat clearing. I don’t intend to address the centralization of the power in the office of the Speaker in the last thirty years or the rise of defections among majority party members in the Speaker vote because it’s covered well by Matt Glassman in his article for Nate Silver and Phil Wallach in his article in the Atlantic. Nor am I going to delve into why the House should keep the motion to vacate as Josh Huder addressed it here. We can argue about all that some other time.
What to do when there’s a vacancy?
So, let’s start by identifying some of the circumstances when the Office of the Speaker is vacant or the Speaker cannot exercise that office’s powers.
The first two of those circumstances are fairly common. First, there’s the start of a new Congress, which is when the Clerk from the previous Congress presides over the selection of a new Speaker. The House is operating under general parliamentary law as the House Rules have not been adopted. The Clerk’s powers are limited. Second, there are planned circumstances, such as when a Speaker undergoes a scheduled medical procedure, and pursuant to House Rules, other individuals are empowered to exercise the powers of the Speaker.
So far so good. Where things start to get hairy are in unplanned circumstances that arise from personal emergencies, national emergencies, and political strife.
Personal emergencies are situations where the ability of the Speaker to exercise their duties are constrained in some way. From a medical perspective, one could imagine a range of possibilities, like senility or debilitating illness (such as a severe stroke). The Speaker could also be taken hostage, or trapped in a war zone, or a number of unlikely but seriously sticky situations.
National emergencies are situations where the ability of the House to exercise its duties are constrained in some way due to an externality. As unpleasant as it might be, imagine that a number of the Members are killed or incapacitated, that travel has become impossible or unsure, or something along these lines.
Political strife are situations where the Members are fighting over who has power. That is, the chamber is unable to function because of some internal political issue. The recent removal of Speaker McCarthy is a good example. There were disagreements about who would hold the office of the Speaker and the chamber was frozen for weeks while the issue was worked out.
How do the House Rules work now?
The House Rules for many years more or less addressed matters of personal emergencies and political strife but did not address national emergencies. After 9/11, the House grafted on new language concerning national emergencies during times when the Office of the Speaker is vacant, and in doing so created a problem.
Specifically, the House empowered the current Speaker to create a secret list of replacements — acting Speakers pro tempore — in case the office became vacant. As we saw recently, there was a lot of confusion about how much power the person in that role would have. I thought Rep. McGovern’s backgrounder, which argued the acting Speaker pro tempore’s powers were limited to ministerial duties of guiding the election of a Speaker or Speaker pro tempore, was persuasive. It appears that acting Speaker pro tempore McHenry also thought his powers were narrowly limited. As did a number of experts on Congress convened by Sarah Binder.
Having the acting Speaker pro tempore possess limited powers in the context of political strife — the removal of one Speaker and fight over who would next serve in that role — is reasonable. After all, the fight is over who will be able to exercise the Speaker’s awesome powers. But, limiting the acting Speaker’s powers in the context of a national emergency does not necessarily make sense. The current rules do not distinguish these circumstances.
Now, if you asked my opinion, I would tell you that I would prefer a nonpartisan Speaker who administers and presides over the House in a way that treats Members fairly and ensures proper debate. Also, that the Majority and Minority Leaders should be the party leaders and the Speaker should strive to be above the fray. Doing this would address many continuity and institutional issues as well as further depoliticize and professionalize the support office staff. But that’s not the system we have now, so even if it’s possible, let’s dial that back to what would be a more incremental improvement.
How to update the House’s Rules to distinguish political strife from emergencies?
In the system we have now, how could we tweak the House Rules to separate out matters of political strife from national emergencies?
I’d look at House Rule I, Section 8, and tweak it along these lines:
8. (a) The Speaker may appoint a Member to perform the duties of the Chair. Except as specified in paragraph (b), such an appointment may not extend beyond three legislative days.
(b)(1) In the case of illness, the Speaker may appoint a Member to perform the duties of the Chair for a period not exceeding 10 days, subject to the approval of the House. If the Speaker is absent and has omitted to make such an appointment, then the House shall elect a Speaker pro tempore to act during the absence of the Speaker.
(2) With the approval of the House, the Speaker may appoint a Member to act as Speaker pro tempore only to sign enrolled bills and joint resolutions for a specified period of time.
(3)(A) 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 for the election of a Speaker or a Speaker pro tempore. However, the Member acting as Speaker pro tempore shall be designated as a Speaker pro emergency and able to exercise additional authorities in a qualified national emergency, in accordance with subdivision (D)
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). The Speaker may not include their own name on that list. The Clerk shall publish the list in the Congressional Record.
(C) For purposes of subdivision (A), a vacancy in the Office of Speaker may exist by reason of the physical inability of the Speaker to discharge the duties of the office.
(D) For the purposes of subdivision (A) –
(i) A qualified national emergency arises when…
(ii) The additional authorities of the acting Speaker pro emergency include…
(iii) A qualified national emergency ends when…
In essence, this creates a separate track for when there’s a qualified national emergency in which the acting Speaker pro tempore becomes a Speaker pro emergency and can exercise additional powers.
What constitutes a qualified national emergency? Who has the authority to declare it exists? What emergency powers would be given to the acting Speaker pro tempore? When would it lapse?
Here are some preliminary thoughts.
How do we know we have a qualified national emergency and who has authority to declare it exists?
It likely will not be possible to spell out all the circumstances that constitute a qualified national emergency. But it seems that it should cover a circumstance where the current Speaker is deceased, seriously injured, or unavailable in circumstances that go beyond that outlined in House Rule 1 § 8(a)-(b). In addition, we don’t want to expand the acting Speaker pro tempore’s powers to address political strife, as that’s what the Speaker election is for. Rather, the elevation of a Speaker pro emergency should only arise due to external circumstances, such as a terrorist attack, civil unrest, environmental hazard, or a plague, which does not permit an orderly succession process to unfolded and requires immediate action by the House of Representatives.
For this to work, we should give the congressional actors some flexibility in determining that a qualified national emergency exists by making use of a procedural approach. The House should be able to declare a qualified national emergency exists in one of three ways:
- The acting Speaker pro tempore and minority leader (or designee) could jointly issue a statement declaring a qualified national emergency exists.
- The Clerk of the House (or their designee/successor) could declare that a qualified national emergency exists based upon a declaration by the President that national emergency under a particular statutory authority.
- The chamber could vote to declare a qualified national emergency.
If the party leaders agree, that seems sufficient to move forward. Given the discord between the parties, it’s likely that a significant emergency would exist. Such a statement would ultimately be published in the Congressional Record, but the statement alone would be sufficient to activate the Speaker pro emergency.
If the Clerk has determined that a qualified national emergency existed based on an appropriate declaration by the president, that would also allow the chamber to move forward should there be partisan disagreement. I realize that the Clerk is a political appointee and operates at the direction of the Speaker. That said, just as the Clerk presides on a nonpartisan basis over the election of the new Speaker at the start of the new Congress, so too the Clerk would be charged with operating independently of political direction in this instance. The Clerk’s declaration would be published in the Congressional Record, but the declaration alone would be enough to activate the Speaker pro emergency.
The House of Representatives could vote to declare a qualified national emergency. This kind of motion should be privileged and supersede pretty much all other business. This way a majority of the House — at least those present — would be able to declare an emergency even if the majority party leadership is unwilling to act.
What emergency powers should the acting Speaker pro emergency possess?
If it is a real national emergency, then the Speaker pro emergency should be given short-term authority at least as extensive as that held by a Speaker.
There is real danger in giving anyone this power, especially when it does not come through a vote of the chamber. The model that I’m thinking of, the Roman dictator, earned its modern negative connotation. In my view, the Speaker’s power must be grounded in the votes of members of the chamber. The next section will discuss ways of addressing this dilemma.
In addition, because it is foreseeable that Members may not be able to meet in person, it would be wise to give the Speaker the authority to allow the chamber to work fully remotely subject to approval of the chamber, also subject to limitations. (The Durbin-Portman approach in the Senate, embodied in S. 548, is both reasonable and bipartisan.)
A primary duty of the Speaker pro emergency would be to get the House back to regular order. That means prioritizing the election of a chamber-approved Speaker of the House.
But, depending on the emergency, this may be difficult to accomplish in the short run. We can imagine troubling circumstances arising if many members are deceased. The radically changed circumstances may mean that it takes time for a new governing coalition to emerge.
In those circumstances, the Speaker pro emergency must be able to keep the chamber functioning so that it can (1) pass time-sensitive legislation while (2) modifying how it operates to deal with the new circumstances.
Putting a clock on the Speaker pro emergency
The declaration of a qualified national emergency, and the powers of a Speaker pro tempore, must be limited to protect the integrity of democracy in the House. It will be hard to find ways to constrain the use of power in advance of the circumstances, but we can use time to limit the long-term effects.
If the declaration of a qualified national emergency occurred through a bipartisan statement of the party leaders or a declaration of the Clerk, it should be brought to the floor of the House at the next opportunity for an up-or-down vote. This vote would place the declaration on more firm political footing. (Obviously, if the House voted to declare the emergency, it would not make sense to hold another immediate vote to ratify the House’s prior vote.)
The determination of a qualified national emergency must end within three weeks of its declaration unless no vote of the House during the emergency had more than 218 members present and voting. The underlying idea is that if more than half of the House’s members are able to vote, then they can vote in a new Speaker. But if fewer than half of the House’s members are able to vote, the emergency is ongoing.
The determination of a qualified national emergency can be extended in those circumstances, two weeks at a time, for a combined total of four months. This should be long enough for some of the states to hold special elections to fill the vacancies for some of the deceased Members of Congress.
Addressing how the House might reconstitute its membership in the circumstance of a mass attack that kills or incapacitates many members is beyond the scope of this discussion. There’s no good and speedy mechanism for the House, and former Washington state Rep. Brian Baird has some interesting ideas on how to address that problem.
Any member should be able to make a privileged motion to end the determination that a qualified emergency exists, which, should it be successful, would transform the Speaker pro emergency into an acting Speaker pro tempore. This is a useful forcing mechanism to make sure the exercise of power is grounded in the democratic nature of the chamber.
Similarly, it should be in order for any member to offer a resolution that declares the Office of the Speaker vacant, which would have the effect of removing the Speaker pro emergency. Two forms of this resolution should be in order: one that removes the current Speaker pro emergency and replaces them with the next person on the list, and a second that replaces the current Speaker pro tempore with a person identified on the resolution.
Contemplating the demise of Members of the House of Representatives is grim business. But as we saw over the last few weeks, changes in the factions and power structure in the House are resulting in members grappling for leverage using whatever tools are at their disposal.
Now that we’ve seen a successful attempt to offer a privileged resolution to declare the Office of the Speaker vacant, we are more likely to see it again. While it is an important power possessed by individual members of the House — one useful in holding the awesome power of the Speaker to account — the House should reform how it is useful to distinguish between circumstances of political strife and matters of national emergency.
