Feldman: House is to blame for dysfunction

On the surface, the gridlock caused by the Republican Party’s failure to elect a speaker of the House of Representatives looks like a dysfunction of our old-fashioned Constitution. But the fault doesn’t lie with that document. The House’s dysfunction today is the product of the evolution of the American party system and the House’s own rules.

Start with the Constitution’s text, which has almost nothing to say about the speaker of the House. Article I, Section 2, Clause 5 says that “the House of Representatives shall chuse (sic) their Speaker and other officers.” There is no further mention of the speaker until the 25th Amendment, which dates to the 1960s and assigns the speaker a role in receiving communications about a president’s temporary inability to perform his duties. Even the fact that the speaker is second in line for the presidency derives not from the Constitution itself but from a statute, the Presidential Succession Act of 1947.

The reason the framers paid so little attention to the role of the speaker is that they assumed everyone knew what it looked like. Colonial and state legislatures typically had speakers in their lower houses. And England’s House of Commons had speakers since before 1367, when Sir Thomas Hungerford became the first person known in history to hold the office.

The first U.S. speakers were not powerful figures — in fact, the odds are you’ve never heard of them. (Frederick Muhlenberg, anyone?) Henry Clay, elected to the speakership in 1811 during his first term in the House, was the first national political figure to exercise substantial power in the role. But the truly dominating position of the speaker began only in the 1880s through the power of the speaker’s position as chairman of the rules committee.

The rules of the House are a thicket of complexity and arcana that I won’t enter. The key point is that those rules, which also govern how the speaker is chosen, are what say the House can’t pass legislation without a speaker. That wouldn’t be a big deal if the speaker were chosen nonpolitically to be a neutral parliamentarian. It is highly relevant, however, in a world where the speaker needs to be chosen by the majority party and that party can’t settle on a candidate.

Because the dysfunction is caused by the combination of House rules and polarized partisanship, the only way to fix it would be to change one of those factors. The rules could be shifted so that a temporary speaker could preside over legislation. Or the minority party could provide some votes to a candidate from the majority party. Either fix would be political, not constitutional.

But the tricky thing about a standoff that emanates from the rules of the House is, of course, that you would need a clear majority to make any changes.

The takeaway is that, whenever a semblance of normalcy returns, there should be a bipartisan effort to change the rules and make it possible for the House to operate at a baseline level even when it is without a speaker. This wouldn’t entail giving all the speaker’s power to an interim speaker, but only, say, the possibility of presiding over emergency spending measures — including keeping the government running and providing military aid to allies.

Although the Constitution says little about the speaker, the purpose of the document was to create checks and balances — not allow total meltdown when one party can’t get its act together.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.