Divine Right of Speakers, Part II
Thu July 26, 2007 4:30 pm

In my previous post on the Craddick brief, I covered the issue of whether the attorney general should rule on the questions posed by Jim Keffer and Byron Cook in requesting an AG's opinion. In particular, I agree with the Craddick brief that Article II, Section 1, of the Texas Constitution, regarding separation of powers into executive, legislative, and judicial branches ("The powers of the Government of the State of Texas shall be divided into three distinct departments ... and no person, or collection of persons, shall exercise any power properly attached to either of the others ...."), should inhibit the attorney general from ruling on internal House matters. However, I am going to proceed with an analysis of the Craddick brief, because the attorney general may decide to address these issues.

What remains to be determined is whether a speaker can be removed during a session by majority vote. In his brief, Craddick creates an argument that insulates him from a motion to remove him. He postulates:

1. The speaker has the unqualified power to grant and deny recognition to any member.
2. The Constitution prescribes a two-year term for the speaker, which cannot be terminated prematurely by the members of the House.
3. The speaker is an officer of the state and as such can be removed from office only by the means specified under the Constitution, which are impeachment and expulsion.

Unqualified Power of Recognition

The source for the speaker's unlimited power to grant and deny recognition to any member is Rule 5, Section 24:

There shall be no appeal from the speaker's recognition, but the speaker shall be governed by rules and usage in priority of entertaining motions from the floor. When a member seeks recognition, the speaker may ask, "For what purpose does the member rise?" or "For what purpose does the member seek to be recognized?" and may then decide if recognition is to be granted.

The brief goes on to cite Rule 9, Section 1b, which, while providing for appeals of other rulings, says, "Responses to parliamentary inquiries and decisions of recognition made by the chair may not be appealed."

Undoubtedly, this has been the practice in the House. I can recall instances in which members have sought recognition to move the previous question, or to adjourn, and the speaker has replied, "Not at this time." This was true under Speaker Laney as well as under Speaker Craddick.

Still, there are other provisions in the House rules that can be read as placing a limitation on the power of the speaker to deny recognition. Within Rule 4, Section 24, is the qualifying language that the speaker "shall be governed by rules and usage in priority of entertaining motions from the floor." I read this to mean that the speaker is constrained by precedent and custom. Furthermore, the speaker's power to deny recognition must be read in conjunction with the rules that address questions of privilege:

Rule 5, Section 35. QUESTIONS OF PRIVILEGE. Questions of privilege shall be:
(1) those affecting the rights of the house collectively, its safety and dignity, and the integrity of its proceedings; and
(2) those affecting the rights, reputation, and conduct of members individually, in their representative capacity only.

Rule 5, Section 36. PRECEDENCE OF QUESTIONS OF PRIVILEGE. Questions of privilege shall have precedence over all other questions except motions to adjourn. When in order, a member may address the house on a question of privilege, or may at any time print it in the journal, provided it contain no reflection on any member of the house.

This is the heart of the matter: Can the speaker deny recognition to a member seeking to make a privileged motion? Clearly, a motion to vacate the chair would fall within Section 35's description of questions "affecting the rights of the house collectively." The issue to be determined when the House next writes its rule is whether to give the speaker the power to deny recognition to such a motion, declare that his ruling is nonappealable, and thereby put himself beyond the reach of the membership to remove him.

Craddick makes an intriguing argument against the interpretation that members must be recognized for privileged motion: that to give precedence to privileged motions would open the door to filibusters in the House.

"Nowhere do the House rules provide that certain motions, even a purported 'motion to vacate the chair,' are privileged exceptions to the speaker's unqualified power of recognition. Questions of privilege under House rules merely involve the order in which motions may be taken up [citing Rule 5, Sections 35-37, the last of which sets forth circumstances in which questions of privilege shall not be in order]. There is no 'privilege' that overrides the speaker's power to recognize or not recognize. Indeed, if such a privilege existed, overriding the plain language [of previously cited Rule 1, Section 9, and Rule 5, Section 24], the effect would be a tectonic shift in House procedure--the introduction of filibuster."

Craddick is right about this, up to a point. In fact, this possibility has always been present in the rules--that by a succession of "tag-team" personal privilege speeches of unlimited duration, members could bring the work of the House to a halt. Craddick's brief argues: "If certain privileged matters require mandatory recognition by the chair, any member could kill a calendar--or even an entire session as Sine Die approaches--by rising on such a matter and beginning a 'privileged' debate that displaces all other business awaiting House action." However, Sections 37-39 of Rule 5 contain limitations on matters of privilege: when they are not in order, what they may and may not address, and when it is appropriate for the speaker to interrupt a member who is speaking. I think that these rules give the speaker and members sufficient parliamentary tools to prevent an abuse of the right of privilege, and that the dire circumstances envisioned in the Craddick brief ("The class of privileged motions posited by requestors would effectively create 150 House member 'speakers,' each with the power to bring business to a halt") can be averted existing rules.

Craddick dismisses "[r]equestors' speculation that a speaker might 'systematically refuse to recognize members for any number of constitutionally impermissible reasons,' adding, without a hint of irony, that "[t]here are no historical indicators to overcome the presumption that a speaker duly elected by the House membership will exercise parliamentary powers including the recognition power in good faith." Hmm. If that presumption prevailed in the House, Craddick would have no need to be writing this brief.

The Constitution Specifies a Two-Year Term for the Speaker

Craddick cites Article III, Section 9(b) to support his position that the Texas Constitution "provides for a speaker to be elected only once every two years--at the beginning of each regular session." The provision reads:

"The House of Representatives shall, when it first assembles, organize temporarily, and thereupon proceed to the election of a Speaker from its own members" (emphasis added in the brief).

Craddick argues: "That language could not be clearer. It establishes a two-year term for the speakership, commencing upon the speaker's election at the beginning of a session and ending when the next session begins. The Constitution makes no provision for the House to change speakers during that two-year term."

It is an old trick in legal writing to say things like, "That language could not be clearer," when the matter asserted is not clear at all. Nowhere does the constitution say that the speaker shall serve for two full years. Craddick's conclusion requires a leap of logic. The fact that the constitution doesn't provide for a means of replacing the speaker doesn't mean that the speaker can't be replaced. For example, the language could be interpreted to mean that the framers of the constitution intended to leave the matter of replacing the speaker to the House in its rules. Indeed, they surely were aware that the House had replaced a previous speaker in 1871, five years before adoption of the new constitution.

Nevertheless, the leaps of logic continue: "That understanding is confirmed by contrasting the once-per-session provision [whoa! the constitution never says 'once-per-session'] for electing the speaker with the Constitution's provision for the Senate to elect a president pro tempore at least twice during each session and as many other times during a session 'as may be necessary': The Senate shall, at the beginning and close of each session, and at such other times as may be necessary, elect one of its members President pro tempore, who shall perform the duties of the lieutenant governor in any case of absence or temporary disability of that office.") The framers thus established different treatment for the election of the president pro tempore and the speaker."

Craddick then asserts, "Only one meaning can be ascribed to [the constitution's] use of "when it first assembles" to designate the one and only occasion per session on which the House may elect its speaker and the exclusion of language like "and at such other times as may be necessary," which would be the source of any power the Senate has to replace the president pro tempore at will. If the framers had intended for the speaker to be elected at times other than at the beginning of the regular legislative session, they would have expressly provided the House membership with that authority, just as they did for the Senate membership in its election of the president pro tempore."

This is yet another logical leap. It is certainly possible to contemplate other reasons why the framers did not provide for the election of a speaker "at such other times as may be necessary." One that I already mentioned is the intention to leave the decision to replace the speaker to the members of the House. A second reason is that the president pro tempore of the Senate may have been regarded as a more important office than speaker in 1876, because he was in line to perform the duties of the lieutenant governor. Senators might have a change of heart in case this eventuality arose.

I am not saying that Craddick's arguments are without merit. His reading of the "when it first assembles" clause is not unreasonable. What is unreasonable is the brief's repeated assertions that the interpretations Craddick puts forth are the only possible interpretations. Here's another example of flawed logic: "The House rules also expressly recognize that speaker elections are not to occur in mid-session. Nowhere do they make any provision for a procedure to remove an incumbent speaker...." As most people who have followed the Craddick saga know, the House rules are indeed silent on removing the speaker. However, the rules themselves speak to what happens when the rules are silent, in Rule 14, Section 1:

"If the rules are silent or inexplicit on any question or order or parliamentary practice, the rules of the House of Representatives of the United States Congress, and its practice as reflected in public procedure, and Mason's Manual of Legislative Procedure shall be considered as authority."

These sources do provide a means of vacating the chair.

Craddick ends this portion of the brief with a public policy argument for a full two-year term: "The speaker must be able to make decisions without worrying about whether an unpopular decision might trigger a removal effect. And if the speakership--and its myriad attendant public functions--could change hands with every shifting political wind, there would be severe costs to stability and continuity of state government." While I agree that stability and continuity are important, I also think that accountability is important. And in making this argument--that the speaker ought to be able to make decisions without fear of losing his job--Craddick reveals, unintentionally, his belief in the divine right of speakers. The speaker ought to be accountable to the members who elected him. He ought to worry about losing his job, just like the rest of us have to worry losing ours. (One of the most remarkable White House tapes of Lyndon Johnson involved his concern, expressed to Senator Richard Russell, that he might be impeached if he pulled out of Viet Nam, as his instinct told him he ought to do.) If Craddick saw himself as more accountable to the membership, instead of the other way around, he, and we, wouldn't be in this mess.

Craddick's next argument may be his greatest logical leap yet:

Step 1: "The constitution does not leave the power of the Legislature regarding its organization and operation to tradition and the inherent or generally assumed authority of legislative bodies."

Step 2: "Many details regarding the operation of the houses of the Legislature that might otherwise be assumed to be inherent to each chamber are expressly provided for in Article III, such as the order of business during a legislative session" [and others].

Step 3 (conclusion): "If the framers of Article III intended to provide the House with the power to remove the speaker at will, they would have specified that power...."

Not so. This is a logical flaw. You could just as easily say, If the framers wished to prohibit the House from being able to remove the speaker at will, they would have specified that provision. Nothing can be inferred from the omission of language.

The speaker is an officer of the state and as such can be removed from office only by the means specified under the Constitution

Representatives Keffer and Cook posed this question to the attorney general: "Are the Speaker of the Texas House of Representatives and the President Pro Tempore of the Texas Senate 'legislative officers' as recently held by the Texas Supreme Court, officers who serve at the pleasure of the membership, according to rules adopted under the authority of Article III, Section 11, of the Texas Constitution, or are the "state officers" subject to removal only as provided in Article XV, Section 7 of the Texas Constitution?"

Article XV is titled "Impeachment," and Section 7 reads, "The Legislature shall provide by law for the trial and removal from office of all officers of this state...."

What determines who is an officer of the state? One argument that Craddick advances can easily be dealt with: "Texas courts have stated that whether the constitutional oath of office is required is another indication that that a position constitutes a public office ... A survey of the House Journals indicates that the speaker-elect generally took the constitutional oath of office immediately after being elected speaker ... The now fully established practice of administering the oath of office to the member elected as speaker of the House further confirms that the House itself considers the position of speaker to be a separate constitutional office." But the brief itself concedes, above, that the oath must be required, not simply be "fully established practice," in order to be an indication that the position constitutes a public office.

Craddick also restates his earlier assertion that the constitution provides that the speaker be elected to a definite term of office. As I wrote earlier, the language of the constitution does not expressly provide for a two-year term. Frankly, I don't see what Craddick hopes to accomplish with these weak arguments.

More to the point, the Craddick brief says (citing cases) that "[t]he predominant determining factor distinguishing those officials who are public officers from those who are not 'is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others?'"

What is "a sovereign function of the government?" Craddick's brief does not address this issue. I can only offer an opinion. In a democracy, sovereignty lies with the people. The Legislature cannot be sovereign, nor can any individual legislator, not having been elected by a vote of all the people. Only the executive branch, which is elected statewide, can exercise the sovereign functions of government. Although Craddick avers in his brief that the speaker "has statewide powers and responsibilities extending beyond the role of presiding over the legislative and parliamentary operations of the House and paralleling the virtually identical roles of the lieutenant governor," there is an inescapable difference. The constitution deals with the speaker in Article III, which deals with the legislative department, and with the lieutenant governor in Article IV, which deals with the executive department.

Craddick makes the following argument: The Texas Supreme Court has said that an acting lieutenant governor (such as when Bill Ratliff was elected to fill the vacancy left when Rick Perry became governor upon the resignation of president-elect George W. Bush) is "in part a Senate officer." Therefore, "If an acting lieutenant governor, who is elected from the Senate's membership and remains a senator, is a Senate officer only 'in part,' that individual most also be a public officer of the state." But to extend the argument to the speaker is stretching the point. The acting lieutenant governor is part of the executive department. The speaker is not.

Craddick's strongest argument is that "[t]he position of speaker of the Texas House of Representatives is not simply the position of presiding officer of the House. The Constitution and statutes bestow numerous other functions on the speaker, any of which clearly constitutes a part of the sovereign functions of the state."

A list follows (citations omitted):

> The speaker is designated as a successor, under certain circumstances, to the office of Governor.

> The speaker is a member of the Legislative Redistricting Board responsible in part for redistricting of the Legislature and judicial districts.

> The speaker appoints two members of the Texas Ethics Commission.

> The speaker is a member of the committee that may set the constitutional limit on the rate of growth of appropriations in a biennium from state tax revenues not dedicated by the constitution.

> The speaker as a member of the Legislative Budget Board participates in budget execution....

> The speaker is a member of, and appoints one other member of, the State Preservation Board.

> The speaker makes appointments to a number of statory agencies outside the legislative branch, including the Texas Judicial Council, the Pension Review Board, and the Employees Retirement System of Texas.

> The speaker participates in the approval of grants from the Texas Enterprise Fund and the Texas Emerging Technology Fund.

Craddick concludes, "As that partial list of powers and responsibilities demonstrates, the Texas speaker, particularly in the office's modern incarnation, is not merely a parliamentary official. The duties that have been assigned to the speaker extend far beyond the limited role of presiding officer of the House and reflect a long and growing tradition of treatment of the position of speaker as a state office on the par with the office of lieutenant governor."

This argument by Craddick is freighted with irony, because the speaker, a conservative, is embracing the liberal view of constitutionalism, that the meaning of the language evolves over time to correspond to new circumstances--here, that speakership has evolved into a position that makes the speaker an officer of the state on a par with the lieutenant governor, and therefore he can be removed only by impeachment. A strict constructionist would look to the original language of the constitution. Article XV, Section 2, deals with officers who may be impeached:

Trial by Senate. Impeachment of the Governor, Lieutenant Governor, Attorney General, Treasurer, Commissione of the General Land Office, Comptroller, and the Judges of the Supreme Court, Courts of Appeal, and District Courts shall be tried by the Senate.

These are the officers of the state who can be removed from office only by impeachment. (The constitution was amended in 1995 when the office of Treasurer was abolished.) The speaker is not listed. Therefore the framers did not regard the speaker as an officer of the state who could be removed only by impeachment.

Nor does it make sense that the speaker should face trial in the Senate. Why should the Senate have the final say on whether the House can remove its presiding officer?

I do not believe that the Craddick brief makes a persuasive case that the speaker can be removed only by impeachment.

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