The House has No Members and the Bootstrapping of Power
Over at Dog Shirt Daily—the awfully named, but otherwise great daily publication by Ben Wittes—Ben has a really interesting question that he proceeds quickly to not answer: does the House have any Representatives?
The motivation for his question is this post by Adam Kinzinger
It might not be a crazy question, but it turns out to be a simple one. The 20th Amendment of the Constitution solves it decisively. As of Tuesday at noon, Mr Kinzinger is, well, Mr Kinzinger, and not Representative Kinzinger anymore:
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
But Ben goes on to ask a better question in the wake of it. If there’s no Representatives from the previous Congress, and there’s not (yet) any sworn-in Representatives from the new Congress, then by what authority is anyone in that chamber even electing a Speaker in the first place?
That’s a great question. Although admittedly the right answer is probably “who cares, it doesn’t matter, eventually they’ll work it out”.
But to me, at least, it’s a fun question to work through.
As it happens, bootstrapping authorities and power-transfer ceremonies are fascinating to me. They’re just really weird. That’s because what they are for and how they work are very subtly different.
In one sense, these ceremonies are mostly just a purely ceremonial hand-over of power from one collection of individuals to another. It’s really that simple. Under normal circumstances they’re a boring and mostly pompous show designed to pretend that the transfer of power is something more abstract and ethereal than one collection of individuals agreeing that another collection are in power now in accordance with the basic agreement of democracy that voters, and not violence, gets to decide what the agenda is for the next few years.
But in formalizing that hand-over, we always end up with a multi-step process that encodes a weird gap. At one point in the process, the previous set of people in power lose power. A few steps later the next set of people notionally take power. But between these two steps is a really weird gap where nobody is actually in charge. Usually nothing interesting happens in that gap. But the gap is fascinating because if something goes wrong during it, it’s usually a colossal mess to clean up. That’s because you don’t really know whether that job rightly belongs to the previous people or the next people, and in most cases, the gap is likely to be problematic only in the case where frictions between those two groups is already large.
It’s worth pointing out that this problem isn’t unique to the House of Representatives. It’s true of all non-continuing bodies (and all unitary bodies such as heads of state or government). So it also exists for the President too, as well as for Governors, many state chambers, and many countries’ executive and legislative branches around the world too. Each have their own weird formalizations of this process.
I’m admittedly biased here, but one of my favorite examples of the Power Gap is in the UK. There, the transfer of power after an election involves the previous Prime Minister tendering his or her resignation to the monarch, followed by the next Prime Minister being invited to form a government. That leads to a wonderfully bizarre gap in the UK where the (traditionally nearly powerless) monarch notionally has all of the executive power for half an hour or so, and spends most of that time waiting in their gilded living room eating cucumber sandwiches and hoping that the incoming PM could just hurry it up and get a move on so they can get on with their normal kingly day.
But what we’re talking about here is the Power Gap as it relates to the House of Representatives. The previous representatives were all auto-fired by the 20th Amendment, and the next collection of newly elected Representatives are not actually Representatives yet because none of them have actually taken their oaths of office. They’ve been avoiding that so far because tradition dictates that they pick a Speaker first. The oath being a hard requirement for transitioning from a Representative-elect to a full member comes directly from Article IV:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
In other words, it really is the case that, for the first time in at least a hundred years, the day has ended with the House having zero sitting members.
Before getting to Ben’s question of under what authority the Representative-elects have to attend Congress and pick a Speaker, it’s worth pointing out an additional oddity of the House of Representatives. Unlike the Senate, which is a continuing body, the House Rules also expire with each Congress.
What that means is not only does the House have no members; it has no Rules either. It’s a sort of lawless Power Gap vacuum where anything would go, if only there were someone with the power to do anything in it.
So what happens when the House has no Rules? The answer is we look first to the Constitution itself, and then to general parliamentary law, as described in the applicable provisions of Jefferson's Manual. These rules are ultra-basic rules of underlying democratic principles of debate that long-predate the Constitution (and Jefferson). I’ll lose lots of friends for pointing it out, but Jefferson’s Manual is actually a fantastic example in its own right of America’s constitution that don’t sit in the main body of the Constitution itself, in a way that Britain embraces and America likes to pretend isn’t the case.
But glossing quickly over that, these rules do such ultra-basic things as provide for the Clerk of the House to Chair debate in the chamber until a Speaker is selected; for debate to occur at all; and for certain motions (such as a motion to adjourn) to be passed; for the yays and nays to be counted; and for basically everything else to fall to a ruling by the Chair which can be appealed by the full body. It’s essentially just the bare minimum to get the House into a position where it can vote to select a Speaker and adopt some Rules that let it get started on the more heavyweight work of actual legislative business, like establishing committees, or scheduling bills.
But even a House with some basic rules needs some members. Which gets us back to Ben’s question. Under what authority do Representative-elects even vote on a Speaker?
Here there’s basically three ways to rationalize this. Two are about divining an inherent right in the Constitution for Representative-elects to vote on a Speaker, and the other is a process argument about timing. Let’s go through them.
The first classical argument comes from Deschler's Precedents Volume 1 Chapter 2 — specifically Footnote 13 on Page 89:
Although no constitutional provision uses the term “Member-elect” or “Representative-elect”, the Constitution impliedly empowers Members-elect to vote for a Speaker (under art. I, Sec. 2, clause 5, the House chooses a Speaker before the House is sworn), and to demand the yeas and nays (art. I, Sec. 5, clause 3), and uses the term “Representatives” when referring to Members not yet sworn (see art. I, Sec. 6, clause 2 and art. VI, clause 3). Some sections of the United States Code similarly use the term “Members” when obviously referring to Member-elect. See 2 USC Sec. 25 (administration to Speaker of oath by “Member”); 2 USC Sec. 27 (changing the place of meeting before Congress convenes, to protect the health of “Members”). See also 2 USC Sec. 21 (administration of oath to “Senators”).
As Deschler would have it, the Speaker is chosen before Representative-elects take their oaths, and the Constitution requires that the House pick its own Speaker. That must mean, according to Deschler, that the Constitution must imply that Representative-elects have inherent authority by raw force of election to select their Speaker prior to becoming a full Representative.
Far be it for me to disagree with this approach, but I’ve always found this particular line of reasoning to be a bit dubious. After all, while it’s true that the Constitution requires Representative-elects to take their Oath before becoming Representatives, and it’s true that the House of Representatives must select their Speaker, it’s not at all obvious to me that the Constitution requires Representatives to select their Speaker before taking their oaths. By switching the order round (take the oath, then select the Speaker) you avoid the whole mess.
It’s true that, by tradition, the Speaker’s oath is administered first and the Speaker then administers the oath to other members. But this is just tradition. There’s no Constitutional reason why the person administering the oath needs any kind of special status at all. The Representative-elects could simply administer these oaths to each other. After all, the Speaker in every Congress has their oath administered to them by a Representative-elect, and in early House practice, Representative-elects had their oaths administered by their respective State delegations, not by the Speaker.
A better way to get to the same argument, at least in my view, is to use Article I Section 5, clause 1:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Here, this argument relies on the House being judge of the returns of its own members. For the Senate, this poses no problem: the sitting Senators can judge the returns of the Senator-elects with no issue. But for the House this leads to a catch-22 situation. How can anyone judge the validity of an incoming Representative’s election if there are no Representatives yet to judge it? And if all of them are elected without such judging, then what is the point of the clause? You can’t even do it iteratively, because then the first person to take the oath has nobody able to judge it, and the Constitution expressly strips anyone other than the House from making the judgement.
It therefore makes sense to conclude that the House doing the judging of returns in Article I Section 5 must be a House made up of Representative-elects, and not Representatives. By extension, if the Constitution envisages that Representative-elects are the House in Article I Section 5 for returns, then perhaps they are also the House in Article I Section 2 for choosing a Speaker too.
At least to me, this seems like a stronger form of Deschler's argument, though I am certainly no Deschler. Even here you could perhaps argue that the Constitution could be read (despite common practice) to allow the previous Congress to judge the returns of the incoming Congress prior to leaving office, to avoid the implication. There’s a bunch of reasons why I think that’s an more problematic argument than it falling to the incoming group of Representatives. But I include it for the sake of argument because it means even here the implied right of Representative-elects to pick a Speaker prior to taking their oath of office isn’t automatic. There are other ways to read the clause.
But to me, the strongest alternative take is that the Representative-elects’ choice to pick a speaker is really an informal vote that is formalized by the adoption of the House Rules once everyone’s oaths are taken, thus avoiding the temporal gap. In other words, the order of operations is:
Representatives choose who their Speaker will be, and this process gets the pomp that implies but does not actually entail a binding vote.
The winner of the informal vote takes their oath
The other members are sworn in by that first member, and themselves become full members
The members then vote on the Rules, which are adopted, and this formalizes the selection of the Speaker (and the Rules).
Which one of these three arguments you prefer is up to you. It doesn’t really matter, because, in real life, the power of the Representative-elects to pick a Speaker comes from the more arcane and normative feature of the Power Gap itself: they are Representatives by force of election, and no technicality of ordering in the pomp of the transfer will deny it to them, since the order of events at the start of the Congress are, in reality, mostly ceremonial.
Luckily for the Representative-elects, there’s not a lot of practical difference between being a Representative-elect and a Representative until the Speaker is selected anyway. Representative-elects mostly obtain the same powers and privileges of their full counterparts, including the protection of the Speech and Debate clause, compensation, office space, and expenses.
It’s true that they cannot vote on or introduce legislation, but until there is a Speaker they can’t do that anyway. In fact, the only obvious difference is that the payment of their salaries might be delayed if the situation is not resolved prior to the end of the month. So if it’s resolved in less than a month, they won’t notice the difference.
And, let’s be real, if it takes more than a month, they’ve got a much bigger problem to deal with anyway.
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