Speaker Boehner should submit to a secret ballot

Attention Members of Congress: Want to reclaim power from the Speaker of the House? Demand a fair election.

Most Americans would be shocked to learn that the election of the Speaker is not done by secret ballot. Instead, on the first day of a new Congress, each member is called by name on the floor to announce, with party leadership looking on, whom that member supports for Speaker.

This was not always the case. The Founders elected the first Speaker, Frederick Muhlenberg of Pennsylvania, by secret ballot on April Fool's Day, 1789. Election by secret ballot remained the standard practice through 1839. To this day, the House rules specifically allow for House officials to be elected by secret ballot. When the new Congress convenes on Thursday, January 3, it should revive the practice of the Founders and elect its Speaker by secret ballot.

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The virtues of the secret ballot are obvious which is why the current Speaker of the House, John Boehner, supports them in other situation.

In a 2009 U.S. News op-ed about then-pending “Card Check” legislation, he excoriated union leaders for supporting a law that would remove workers’ rights to cast a secret ballot. Doing so he said “would leave them open to coercion and intimidation.” Instead of “allowing an employee to make this critical choice in secrecy, the act would end workers' right to privacy, making ‘votes’ completely and utterly public, for all coworkers, union organizers, and employers to see.”

Speaker Boehner then accused liberals of hypocrisy for supporting secret ballots in all other contexts. He cited then-House Rules Committee Chairwoman Louise Slaughter saying – in reference to Democrat leadership elections – “It’s a secret ballot, thank the Lord.” He also quoted an AFL-CIO legal brief stating in a different context that a secret ballot "provides the surest means of avoiding decisions which are the result of group pressures and not individual decisions."

The Speaker’s arguments about coercion and intimidation apply with equal force to his own election. Members are at the Speaker’s mercy in numerous ways, most obviously committee assignments.

On the elite panel that makes these assignments, the Speaker gets five votes (it was four until Speaker Boehner raised it to five); everyone else, except the Majority Leader and Whip, gets one. The Speaker also controls whose legislation gets a vote on the floor, chooses which members to reward by headlining their fundraisers, and in practice influences where party money is directed in re-election campaigns.

With this immense leverage, members risk their entire political career if they dare to step forward to vote for anyone other than the incumbent Speaker.  To pretend that such an exercise is a free and fair election borders on the absurd.

Perhaps for this reason, the position of Speaker was specifically excluded from a rule that persisted until 1999 requiring all other House officials to be elected by “viva voce” (roll call) vote.

The history of this provision is telling. For the first 50 years of the Republic, the people’s representatives elected the Speaker by secret ballot. Then, in 1839,  the House opted to elect its speakers in a public roll call vote for the first time, despite “much opposition to the method.”

Curiously, however, in 1880 the House Committee on Rules specifically singled out the Speaker from the list of officials who must be elected by roll call vote, leaving the Speaker open to a secret ballot election. The histories of the House make clear that “it seems to have been the intention that the House on each occasion should determine how it would elect its Speaker.”

Today, at the start of a new year, the political headlines are awash with rumors of dissatisfaction with Speaker Boehner in Republican ranks. There is suspicion the Speaker retaliated against Representatives who expressed sincere policy differences by stripping them of their committee assignments. The Speaker’s supporters counter that he preserved the majority. Detractors counter the victory was all in the redistricting.

The surest way to calm the tension is to permit the Representatives to vote their conscience in electing a Speaker. The only way that can happen is if the election is held by secret ballot so there is no fear of retaliation. Even if the dissenters lose, they can respect the result as flowing from a fair process.

Republicans should not fear the secret ballot. Nancy Pelosi will not become Speaker even if all Democrats unite behind her.

The reason is that to become Speaker it is not enough to win a plurality. One must win an absolute majority of all votes cast for an individual. So even if all 201 Democrats vote for  Pelosi, Boehner gets 1 vote, and the remaining 233 Republicans each vote for a different individual, Pelosi does not win. Pelosi would need 218 to reach a majority of the 435 votes cast for an individual. Since Republicans have a 33 vote advantage in the House, the only way Pelosi wins is if 17 Boehner opponents affirmatively vote for her or abstain rather than simply vote for an alternative candidate.

Both these scenarios are easily avoided.

The same argument applies if fewer than 435 Members show up to vote. The magic number for the required absolute majority would be less than 218, but Pelosi still cannot get there so long as there are more Republicans in the room than Democrats and they don’t abstain. And why would they abstain when the vote is secret?

There is, however, the possibility that a third party could mount a campaign for Speaker. There is no requirement the Speaker must even be a member of the House so theoretically even Donald Trump could pull votes from both parties and win. (He is a great negotiator and might love to tell the current Speaker, “You’re fired!”)

The secret ballot would free members of Congress to insist upon House Rules reform such as requiring regular order so all members have input into bills before they reach the floor.

Progressive Republicans did just this in the 1923 Speaker elections. Even without the cover of a secret ballot they denied the presumptive Speaker an absolute majority through eight successive rounds of voting until the leadership agreed to reforms that returned power to the members.

All it takes to reinstate the secret ballot is for a member to make a motion for it on the floor. This motion is privileged, debatable and passes with a simple majority. On January 3, any Representative, Democrat or Republican, can make that motion. A true leader would do it himself to prove he doesn’t need union boss tactics to win elections.

Mendy Finkel is a Columbia Law School graduate and a frequent political commentator.