A Chaotic Start to 2023 in Washington: How is the Speaker of the House Elected?
By Lizzy Lees, NCPERS, and Tony Roda, Williams & Jensen, PLLC
Normally electing the Speaker of the House is a relatively smooth process, but given the once-in-a-century delays in the 118th Congress we've outlined the election process and the unique factors at play below.
Yesterday, the 118th Congress convened for the first time. Newly and reelected Senators were sworn in, appointing Sen. Patty Murray to Senate president pro tempore. Murray made history as the first woman in the country's history to hold that role.
But that historic appointment was overshadowed by a chaotic start for House lawmakers as Kevin McCarthy failed to secure enough votes to become Speaker in three rounds of ballots. The most recent time in history a House Speaker wasn't elected on the first ballot was 1923.
The process highlighted GOP infighting and foreshadowed potential challenges in the coming years. As a result of the delays, no Members have been sworn into office and no legislative business can occur.
Normally electing the Speaker of the House is a relatively smooth process, but given the once-in-a-century delays we've outlined the election process and the unique factors at play below.
How is the Speaker of the House Elected?Unlike the Senate, the House is not a continuing body through each election and must be reorganized every Congress. No legislative business can be conducted in the House of Representatives without a Speaker in office and the Speaker vote occurs before Members are sworn into office. The first action in the House is to establish a quorum, which is immediately followed by electing the Speaker of the House.
The Clerk from the 117th Congress is responsible for preserving order and decorum and is able to decide all questions of order, subject to appeal by a Member. The candidate must receive an absolute majority of the votes cast to be elected Speaker.
The Clerk will call upon Members-elect to vote for their Speaker candidate. If a Member-elect votes “present”, their vote does not count in the final tally for Speaker, but it contributes towards the quorum. If a Member-elect is present but does not respond, they are considered absent and are not counted in the quorum.
If each of the 434* Representatives-elect votes for a candidate, the majority would be 218. If a Member-elect votes “present” or does not vote, the threshold to win a majority decreases. In effect, the threshold decreases by a vote for every two people who answer present or do not participate.
According to the “Precedents of the United States House of Representatives”, there have been two instances of the House choosing a Speaker by a plurality of votes, which was then confirmed by majority vote:
“In 1849 the House had been in session 19 days without being able to elect a Speaker, no candidate having received a majority of the votes cast. The voting was via voice, each Member responding to the call of the roll by naming the candidate for whom he voted. Finally, after the fifty-ninth ballot, the House adopted a resolution declaring that a Speaker could be elected by a plurality (1 Hinds Sec. 221). In 1856 the House again struggled over the election of a Speaker. Ballots numbering 129 had been taken without any candidate receiving a majority of the votes cast. The House then adopted a resolution permitting the election to be decided by a plurality (1 Hinds Sec. 222). On both of these occasions, the House ratified the plurality.”
Getting the Votes in the 118th Congress
Going into the 118th Congress, Republicans will control the House with 222 seats. Democrats hold 212 seats and there will be one vacant seat. As previously noted, if all 434 Members-elect vote, the Speaker needs 218 votes to win the majority. While Leader McCarthy has the support of the majority of House Republicans, he can only afford to lose four Republican votes to reach 218.
On December 8th, seven HFC members wrote to Leader McCarthy with a list of demands. The signers include HFC Chairman Scott Perry (R-PA) and Representatives Chip Roy (R-TX), Dan Bishop (R-NC), Andrew Clyde (R-GA), Paul Gosar (R-AZ), as well as Members-elect Andy Ogles (R-TN) and Eli Crane (R-AZ).
This group, plus Member-elect Ana Paulina Luna (R-FL), released another letter on January 1st in response to Leader McCarthy's Dear Colleague, stating that Leader McCarthy's statement “comes almost impossibly late to address continued deficiencies ahead of the opening of the 118th Congress.”
Representative Lauren Boebert (R-CO) has also publicly withheld her support with a particular emphasis on the demand related to the motion to vacate the chair and remove the Speaker. It is important to note these members will likely not feel politically isolated in making these demands as they have a robust outside infrastructure to support their efforts, much of which is centered around the operation at the Conservative Partnership Institute.
Members of the Main Street Caucus released a letter that their caucus “will hold the line” for Leader McCarthy, stating that “Kevin McCarthy is best prepared to lead the 118th Congress, and we are prepared to vote for him for as long as it takes.”
Note that even under the assumption that every House Democrat is present and votes for Jeffries, Jeffries could only be elected Speaker if he received votes from Republican Members-elect, or if 10 or more Republicans were absent or voted “present.”
The House could agree to adopt a resolution to declare that a Speaker can be elected by a plurality rather than by a majority. That would require support of Republicans that had voted to deny Leader McCarthy a majority on earlier ballots, or cooperation from Democrats, and it is not clear whether either group would support such a resolution.
Again, the House does not kick off the new Congress until a Speaker is elected.
With two-thirds of its body from the previous Congress still sworn-in Members, the Senate considers itself a continuing body through each election. As a result, the Senate does not need to fully reorganize every Congress or re-approve rules.
Democrats will retain control of the Senate with a 50 – 49 majority as Senator Sinema recently announced she is now an Independent and declined to say specifically whether she will caucus with Democrats as fellow Independents Senator Angus King and Senator Bernie Sanders do. She did say, however, that she will not caucus with Republicans.
It is expected that the Senate will revise the ratios of Committee membership in the 118th Congress to give Democrats a slight numeric advantage on each Committee. The exact number of seats on each Committee has not yet been announced and Committee rosters have not been finalized. The Senate will recess until January 23rd. It is expected that Committee rosters will be announced on or about that date.
*Representative-elect Donald McEachin (D-VA-4) passed away November 28, 2022, decreasing the total number of Members-elect for the 118th Congress to 434. A special election to fill the vacancy for VA-4 is scheduled to be held on February 21, 2023.