By Richard Cohen, Chief Author, The Almanac of American Politics
As the November election approaches, forecasts of the outcome in the House have evolved. No doubt, the uncertainties will continue. But little attention has been given to the implications of the growing possibility that the House majority could be razor-thin, for one party or the other. That, in turn, could result in a chaotic handling of the House’s customary first decision and vote—the selection of the Speaker.
Given statements that have been made by renegade Democrats and Republicans—including both incumbents and prospective freshmen in each party—who oppose their party’s current leadership, there is a real risk that when the 116th Congress convenes next January nobody will receive the requisite majority for Speaker from those present and voting, as required by House rules.
Already, some junior House Democrats have demanded the ouster of Nancy Pelosi as their party leader. On the other side of the aisle, some Freedom Caucus Republicans have warned that they again will refuse to go along with the GOP Conference’s selection of their party leader. As election campaigns intensify, the number of rebels more likely will grow rather than shrink—especially among those who have had no stake in earlier leadership choices. That could force a multi-ballot House contest for the first time since 1923, when nine ballots were required to select the Speaker. (More below on that little-known conflict.)
In addition, there were two instances prior to the Civil War in which deadlocks in selecting the Speaker, which resulted from conflicts over slavery, required three weeks (and 63 ballots) to resolve in 1849 and two months (and 133 ballots) in 1855. Those separate battles were settled by creative use of House procedures and control by plurality rule, rather than a majority.
So, what would happen next January if—hypothetically—one party has 220 members of the 435 who have taken the oath of office, but three of them stubbornly object to their party’s formal nominee for Speaker? The short answer is that nobody knows. Given the speculative nature of this scenario, including the impossibility of knowing prior to November who will be casting votes and what will be the partisan margin, serious maneuvering would not start until the days immediately following the election.
It’s worth noting that a five-seat House majority (i.e., 222 seats) for one party or the other would require a Democratic gain in November of 17 to 27 seats from the most recent partisan control of each seat; that is in the range of many current assessments.
House history and precedents offer some clue to the internal challenges and how they might be resolved. In a word, the usually routine selection of the next Speaker could become a mess. Almost certainly, the in-fighting would produce a media spectacle that might further erode confidence in the legislative process and democratic governance. For example, multiple House members could step forward as candidates for Speaker. All sorts of promises might result, with deals that are both public and private. Under the Constitution, the Speaker is not required to be a House Member, though an outsider has never been seriously considered.
In some recent cases, the Speaker has barely prevailed, as the result of defections in his own party. John Boehner received 216 votes in January 2015, with 25 Republicans voting for a medley of 10 other candidates. In 1997, Newt Gingrich received 216 votes as 4 GOP members voted for other candidates; six other Republicans either voted present or did not vote. In each case, at least 227 Republicans had been elected and the winner for Speaker received a majority of those voting—though not a majority of all House members. So, the controversy was resolved within the party in control.
There have been other cases in which the House majority was exceedingly thin. In 2001, when 221 Republican had been elected, they remained unified. Speaker Dennis Hastert, accordingly, won another term without controversy. In 1930, 218 Republicans were elected. But the deaths of GOP members and subsequent special elections prior to the December 1931 vote for Speaker resulted in the victory of Democrat John Nance Garner, who got 218 votes. (Prior to the ratification in 1933 of the 20th Amendment to the Constitution, which moved the convening of Congress to the January following the election, a newly-elected Congress did not take office for more than a year.)
In a closely divided House, uncertainty would result if members of the majority party voted for somebody other than that party’s nominee for Speaker. “If no candidate receives the requisite majority, the roll call is repeated until a Speaker is elected,” according to a May 2017 report by the Congressional Research Service. “Members may continue to vote for any individual, and no restrictions, such as eliminating minority candidates or prohibiting new candidates from being named, are imposed.”
Following the 1922 election, in which 225 Republicans were elected, a bloc of roughly two dozen self-styled Progressives within the GOP demanded changes in House rules and other procedural reforms. Frederick Gillett of Massachusetts, who had been Speaker the previous four years, agreed to the changes after three days of negotiations and he won another term.
(There were numerous notable aspects to the 1922 election—including the mid-term loss of 75 House GOP seats, the Teapot Dome scandals that undermined support for President Warren Harding, and the only time in U.S. history when the House—under GOP control in 1921—refused to order a reapportionment to reflect the results of the decennial Census. As it turned out, Harding died in August 1923 and was succeeded by Calvin Coolidge. Both Coolidge and Gillett started their political careers in western Massachusetts towns a few miles apart, though Gillett was 20 years older. The low-profile Gillett gave up the Speakership to run successfully in 1924 for the Senate, where he served one term before retiring.)
Contested elections for Speaker can raise the prospect of rewards, or possibly punishment, for the party mavericks. Following the 2015 conflict, for example, Boehner stripped two Republican dissidents from their seats on the House Rules Committee.
Dissidents arguably have enhanced leverage when the two major parties are more closely divided. In an extreme case, members of the minority party might have influence if they can create a coalition with majority-party rebels, especially if they can find ideological common ground; such outcomes occasionally have resulted in state legislatures. For a hypothetical showdown next January, the prospective rebels—in either party—could be centrists or from the policy fringes.
In a 2015 article in The Washington Post, two academicians wrote that the rebels in 1923 held the balance of power in the House. “The Republican Old Guard had to swallow a lot to make this deal, but they had no choice — the alternatives were an unorganized House or a House organized along Democratic/Progressive lines,” wrote Jeffrey Jenkins and Charles Stewart, who are professors of political science respectively at the University of Virginia and Massachusetts Institute of Technology.
Jenkins and Stewart authored a related book, Fighting for the Speakership, which was published in 2012. They analyzed how changes in the organization of politics and parties have affected the selection and power of the House Speaker. In a paper that they wrote for a meeting of political scientists in 2001, they encouraged greater “understanding how House members tried to impose stability on a process that seems ripe for instability and gridlock.”
With the increase in congressional instability and gridlock since 2001, it’s been uncertain whether and how the internal dysfunction might intensify. In ways that can only be guessed for now, that perfect storm might hit Capitol Hill in November. The outcome might have unpredictable consequences, such as blowing away the current party leaders in the House and uprooting the leadership dominance of legislation that has grown entrenched in recent years.
Richard E. Cohen is Chief Author of The Almanac of American Politics. For more insights, including profiles of all Members of Congress and the governors, order your copy of the Almanac from www.thealmanacofamericanpolitics.com.