What the Constitution Has to Say About the Election of a Speaker of the House
by Michael C. Dorf
Here's what the Constitution (Art. I, Sec. 2) says about the election of a Speaker of the House: "The House of Representatives shall choose their speaker and other officers . . . ." That's it. Notice that the provision does not say how the House shall choose its Speaker, but the conventional wisdom--with which I agree--is that it requires a majority vote. That's because wherever the Constitution sets a different threshold, it does so expressly.
That said, if the House were to decide, say, that the winner of a plurality will be Speaker, that decision would almost certainly not be subject to judicial review (i.e., it would be a non-justiciable political question). However, the decision to choose by plurality (or some other mechanism other than majority-vote of the full chamber) would itself need to be taken by a majority of the House. Thus, so long as a blocking minority of House members opposes any particular choice for Speaker, the House will almost certainly not vote to adopt some other mechanism for choosing the Speaker.
Thus, most of what you have been reading and hearing about the selection of the Speaker is accurate. What about other congressional business?
But here's the thing. The Constitution itself doesn't require that the Speaker be the one to administer the oath. Article II sets forth the Presidential oath, which by tradition is administered by the Chief Justice. Accordingly, in principle, a Supreme Court Justice could walk down the block to the Capitol and swear in the new members, whereupon the House could conduct other business pending the selection of a Speaker. No currently binding rule of the House (because there are no currently binding rules of the House) blocks that procedure.
The difficulty here is that a federal statute says that the Speaker must administer the oath--and that this administration must occur "previous to entering on any other business." Meanwhile, a Congressional precedent established in 1869 (pp. 120-21 here) likewise provides: "The duty of the House to organize itself is a duty devolved upon it by law, and any matter looking to the performance of that duty takes precedence in all parliamentary bodies of all minor questions."
So, by legislative precedent, the House can't take any other action until a Speaker is chosen, but legislative precedents are effectively norms that can be broken. The statute is a different matter. Is the statute valid? Art. I, Sec. 5 of the Constitution says that "[e]ach House may determine the rules of its proceedings." Arguably, the statute governing who administers oaths is a rule of House procedure, but it cannot be overridden by a simple majority vote of the House; as a statute, it can be repealed only by the Art. I, Sec. 7 process, involving the Senate and the President. One might therefore think the statute is invalid as an interference with the House's constitutional prerogative to make its own rules.
Nonetheless, other statutes govern some aspects of Congressional procedure. One can therefore read Art. I, Sec. 5 as a default principle. And given the fact that the rules go away at the end of each congressional session, there's a need for some minimal rules about organization. A statute is a sensible way to provide such--especially one as minimal as the statutory provision stating who administers the oath and the order of business. Accordingly, the better conclusion seems to be that the statute requiring the Speaker to administer the oath and that the oath must precede other business is valid.
Moreover, even if the statute is invalid, it would take a majority vote of the House to adopt a rule permitting someone other than the Speaker to administer the oath. And the same faction currently blocking the election of a Speaker might well block such a rule.
Thus, until a majority can agree on something, the House is stuck.