Stop The Soap Opera & Begin A New Tradition: Why The House’s Inability To Select A Speaker Is An Opportunity For Radical Reform.

For two days, the United States House of Representatives has treated us to a spectacle. It is actually functioning like a legislative body instead of a scripted cesspool for the first time in decades. There have been debates and actual votes. There have been discussions between members of all parties, and it seems like there is a lot of deal-making being attempted behind the scenes.

The bad news? The House isn’t struggling with a substantive issue of national importance. They’re fighting over who should be elected Speaker of the House like a bunch of sorority girls. Congratulations, Hollywood! Your steady dose of national smut for entertainment has made it into the United States Congress. Instead of the Kardashians or a crop of irrelevant women on a reality dating soap opera, the contestants are Kevin McCarthy – a longtime Republican Congressman and the de facto party pick for Speaker -, 20 some odd holdouts styling themselves the Freedom Caucus, and 212 Democrats who want to anoint a politically correct candidate to pander to minorities.

The 20 Freedom Caucus holdouts have frustrated McCarthy’s attempts to be elected speaker for 3 days and 12 votes so far. More votes are predicted to come tonight, January 5, 2023. There is no sign that the deadlock and the House’s inability to elect a Speaker will end any time soon.

Why the fuss? The Speaker position has evolved in one of immense power. Not only is the Speaker third in line to succeed the President if something should happen to him, but the Speaker also exercises immense control over the House’s proceedings, controlling, to a great degree, which amendments can be offered to legislation on the House floor, the terms and conditions of debates, and the scheduling of debates. Depending on the authority surrendered by the full House, the Speaker may also control certain committee assignments. In other words, the Speaker runs the House.

In the hands of a powerful Speaker backed by a strong political party, this power is devastating. It enables the Speaker to shut down the minority party’s attempts to amend legislation or to pursue a meaningful debate on legislation. In other words, a strong partisan Speaker ensures majority party lockstep in the House instead of a free legislative process.

Candidly, when I look at the United States Senate, I have little hope that the idea I am about to offer will work any better than the present cesspool that is the House, but it would at least temporarily nudge things in the right direction.

My free time is almost non-existent, but one of my hobbies used to be to watch YouTube clips of the British House of Commons (their equivalent of our House of Representatives). While they select their Speaker from a sitting member of Parliament, their Speaker typically takes on a non-partisan role. As former Speaker John Bercow aptly used to state, the Speaker served as an advocate for the rights of the House of Commons, not as a party leader. In fact, the Speaker is prohibited from voting unless it is to break a tie.

Among the rights that the Speaker must protect and that Bercow took especial pains to emphasize was the right for both the government party and the opposition party to have their own days to take up new business and the right of back-benchers (rank and file party members) to participate in the legislative process, usually through designated days devoted to business that they wished to propose.

The tradition of the British Speaker’s role was born out of the British Parliament’s long struggle with the monarchy – one that still continues to this day. The monarchy always enjoyed the power to prorogue or dismiss Parliament – either for a period of time or permanently until necessary. While this power has been sharply curtailed, the monarchy’s weakness now places this power squarely into the hands of the government party. Parliament’s struggles with the monarchy over prorogation gave rise to a tradition where its Speaker became traditionally duty-bound to be an advocate for the House’s rights, not a partisan participant in its proceedings.

The United States Congress was built on a far different constitutional tradition. The President does not enjoy unfettered discretion to dismiss or adjourn Congress. Instead, Article II, Section 3 of the Constitution only permits the President to adjourn Congress if the House and the Senate cannot agree on the terms of their adjournment. Otherwise, Article I, Section 5 vests the power of adjournment in Congress itself.

Since our Congress did not have to fight constant battles with the President to protect its legislative privileges, our Speaker is not traditionally required to protect the House’s rights and has been weaponized against the members of the House rather than serving as an advocate for all members’ rights.

The blueprint is simple. The majority party installs one of their party leaders into the Speaker’s chair. The party leader never loses his or her character of a partisan and uses the power of the Speaker’s chair to advance the majority party’s agenda at all costs, including the cost of spirited debates and participant legislating.

The Constitution imposes no requirements on who may be Speaker though. Article I, Section 2 simply provides that the House shall choose its own speaker and other officers.

My proposal is simple. End the practice of making a party leader Speaker of the House. Instead, find someone committed to true legislative government and, above all else, honorable. Install that person in the Speaker’s chair with the understanding that the Speaker will be an advocate for all members’ rights as well as a referee to enforce the rules.

Could it work? It will depend on the person. I look at Chief Justice John Roberts presiding over Donald Trump’s impeachment trials, and it gives me hope. Apart from failing to read a certain question because of his own sensibilities (he is human), he conducted the proceedings in an even-handed way, and he kept the peace well.

A similar individual would serve the House far better than any of its members could right now. There are plenty of retired judges out there. Recruit and pay one for a year. It might do wonders for the legislative branch in our nation.

Cameron L. Atkinson

Cameron Atkinson is a Christian, a published constitutional scholar, a trial and appellate lawyer, and a general hell-raiser. He has received national recognition for his victories in civil rights cases, especially in First Amendment cases. Attorney Atkinson stands out for his written advocacy, and he has taken the lead role in briefing cases to the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court, the Connecticut Appellate Court, and multiple New York appellate courts. Attorney Atkinson has successfully represented clients facing criminal charges, including successfully arguing for the reversal of a sexual assault conviction before the Connecticut Supreme Court. He will accept requests for public speaking engagements on a case-by-case basis.

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