My notes for talking to reporters about Speakership elections
This is not an authoritative procedural guide
This is not an authoritative procedural document. It is my shorthand notes, based on the precedents and past practices of the House. In many cases I do not use exact or complete procedural language. Citations are often incomplete.
Citations are to House Practice, the House Rules and Manual, and the Precedents of the House. Other good sources are the CRS reports on the Speaker election: the FAQ, the history of Speaker elections, their guide to the first day of Congress, and a general report on the Speakership.
The House is ultimately in charge of its procedures and practices. Article I, section 5 of the Constitution sets a few rules of procedure (majority quorum required, requirement to keep a journal, requirement to take recorded vote upon demand of 1/5), but authorizes the House to make its own rules of procedure otherwise. A majority in the House has wide latitude to alter its procedures, even to reverse longstanding practice.
The order of business on the first day of Congress has traditionally been: (1) call lto order, (2) prayer and pledge, (3) quorum call, (4) election of the Speaker, (5) swearing in of Speaker, (6) swearing in of Members, (7) adoption of the Rules of the House for the new Congress, (8) adoption of resolutions and UC agreements, and (9) announcement of Speaker policies.
Prior to the adoption of the Rules of the House, by precedent and past practice the House operates under General Parliamentary Law, which is generally accepted to be Jefferson’s manual as modified by the customs and practices of American legislative assemblies, and the House in particular. (House Practice Ch 5 § 7; House Rules and Manual § 60; Hinds §§ 6761-6763)
Prior to the adoption of rules, the Speaker is presiding under this General Parliamentary Law; prior to the election of a Speaker, the Clerk from the previous Congress presides under the General Parliamentary Law, 2 USC 25-26, and (the arguably inoperative) section 2(a) of Rule II of the House (which haven’t been approved yet),.
The Clerk has the authority to make rulings. Rulings of the chair can be appealed to the whole House. So a majority of the members-elect have the power to shape proceedings if they wish, simply by appealing rulings and overruling the Clerk to set new precedents. [In 1860, the Clerk refused to make rulings from the chair, submitting everything to the House, but that was a complete mess.]
Speaker’s have been elected by (1) viva voce vote in response to the call of the roll, (2) by ballot, and (3) by resolution. Any are acceptable, and it is up to the House to choose its method of election.The Speaker vote has been done viva voce since 1839. Prior to 1839 it was done by ballot. Speakers have also been elected by passage of a resolution on occasion, typically after a mid-Congress vacancy.
In the 19th century, it was customary to use a motion to proceed to the election of the Speaker that required a procedural vote (and could be defeated), but now by custom the Clerk just moves straight to that after the opening day quorum call.
The election of the Speaker is of highest constitutional privilege, and takes precedence over other business (Manual §27, see January 7, 1997 attempt to delay Speaker vote until ethics charges settled). Historically, the House has not adopted rules or taken up any business until a Speaker is elected. In a number of cases, this has taken weeks.
Under current practice, election of a Speaker requires a “majority of Members-elect, voting by surname, a quorum being present.” Under current practice, you do not need an outright majority of the House (i.e. 218) nor do Members who do not vote (or who vote “present”) count. If you get 216, someone else gets 212, and other candidates get a total of 7, you do not win (216/435). But if you get 216, someone else gest 212, and 7 people do not vote (or vote “present”), you do win (216/428)
In general, the Clerk immediately moves for a subsequent ballot if no Speaker is elected on the first ballot; however, members-elect may seek recognition and upon obtaining the floor may operate under the general parliamentary laws. This includes making motions, proposing resolutions, moving to table motions, calling for the yeas and nays, and adjourning. ((See 1849, 1855-56, 1859-60, 1923))
In past multi-ballot Speakership elections, the House has typically taken several votes a day, and then adjourned until the next day. Proceedings typically from noon to 3pm or so before someone moves to adjourn. (See 1849, 1855-56, 1859-60, 1923)
Voting *can* be done by electronic device for procedural questions. It is used for the initial quorum call before the election, and it was used in 1997 for a roll call vote on tabling a resolution that was attempting to delay the speaker vote (see Congressional Record, Januar 7, 1997). But it doesn’t seem like it is available for the traditional Speaker vote, since it’s not a yea/nay question. (Note that a Speaker could be elected by resolution naming one person, and that resolution could use the electronic voting system)
1923 has some similarities to the current political dynamic. In 1923, a faction of the majority party [progressive Republicans] was seeking changes to the rules, and withheld their votes on the floor. Four votes were taken on opening day, and four votes were taken on day 2. A deal was then cut to mollify the holdouts, the deal was announced on the floor at the start of Day 3, and a 9th overall vote gots Gillett over the top on Day 3.
1849, 1855-56, and 1859-60 had a somewhat different political dynamic, because they actually represent a struggle over the balance of power *between* the parties in the House, with slavery-related issues cross-cutting a situation that was effectively more than two parties.
In the drawn out battles in 1849, 1855-56, and 1859-60, several procedural maneuvers were attempted to break the deadlock. First, numerous attempts to alter the rules were made: to used something like rank-choice voting or runoff voting, where a first ballot would be open, but then candidate getting few votes would not be allowed on the second ballot; or by taking the top few candidates and selecting randomly out of a hat. None of these proposals were ever accepted. They were either defeated or tabled.
One procedure that *was* accepted was plurality voting. In both 1849 and 1855-56, the election was ultimately resolved by the adoption of a resolution that created a plurality winner. The resolution provided for three more regular election votes, and if no one was a majority winner, a fourth vote would be taken and the candidate with the most votes would win. This is how both Cobb and Banks secured election. In each case, the House then passed a resolution declaring them Speaker, which was adopted by a full majority, though then (and now) those resolutions seem superfluous. (See Hinds §§ 221-222)
Finally, in all of the deadlocks in the antebellulm era, a number of members were put up for the Speakership by resolution, getting an up/down vote instead of the open viva voce vote where anyone can vote for any candidate. None of these resolutions were ever adopted, either because they were defeated or tabled.
The basic patterns of behavior in the deadlocks went like this: hold several vote a day viva voce, potentially offer resolutions keying on a single candidate (which might be voted on or might be tabled), potentially offer resolutions seeking to alter the terms of election (which might be voted on or might be tabled), and then move to adjourn to the following day to try again after off-floor negotiations between factions, candidates, etc.
General Parliamentary Law
The House Rules have not been adopted. Statutory rulemaking provisions are not applicable.
Hinds V 6761
Lots of procedures are available: points of order, previous question, yeas and nays, adjournment, tabling, unanimous consent request. From House Practice:
HIghest privilege to nominations for election of the speaker
1997 Fazio tried to move a resolution postponing the election of the Speaker, clerk said out of order, appeal was tabled.
Historically, have had situations where motion was used to elect the Speaker
Winning via plurality:
1849 — Lots of resolutions offered (by lot, by ranked choice drop off, all tabled), ban on debate, adjournment more than a day argued, plurality vote adopted, Cobb wins, declaration resolution by a majority (HInds § 221)
1855-56 — Resolution offered for plurality vote, Banks wins plurality, majority than ratifies with declaration resolution (HInds § 222)
1860 — Clerk submitted all questions of order to House, allowed debate on questions of order, things slowed down. Motions were required with previous questions to get to Speaker votes. (HInds § 223). Plurality resolution rejected
Progressive Republicans want rules changes
4 ballots on 12/3/23, followed by adjournment
4 ballots on 12/4/23, followed by adjouirnment
Deal cut and announced on floor at outset of 12/5
1 ballot of 12/5/23, Gillett elected after capitulating to progressives on potential rules changes
133 ballots, usually 3-4 a day, from noon until 3pm or so, then an adjournment.
Lots of resolutions trying to get a specific person put in as Speaker
Lots of attempts at plurality voting, finally agreed to on 1849 basis, to be 4th ballot
1849 - Cobb
Lots of resolutions for choosing by lot, or by doing rank-choice elimination, or by plurality vote:
The 1860 Speaker election debate was described as one in which many representatives carried weapons on the House floor.
Can a member-elect vote before being sworn in?