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A Speaker Choosing the Next Speaker? Can It Really Be True?

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  • Greg Cannon
    http://www.aei.org/publications/filter.all,pubID.25030/pub_detail.asp A Speaker Choosing the Next Speaker? Can It Really Be True? By Norman J. Ornstein Posted:
    Message 1 of 1 , Oct 21, 2006
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      A Speaker Choosing the Next Speaker? Can It Really Be

      By Norman J. Ornstein
      Posted: Thursday, October 19, 2006
      Roll Call (Washington)
      Publication Date: October 19, 2006
      Many media outlets, including the Washington Post,
      noticed Roll Call’s reporting last week on the
      little-noticed provision in House rules for
      alternative Speakers in the event of a vacancy in the
      position. Of course, the story is newsworthy because
      Speaker Dennis Hastert (R-Ill.) is clinging
      precariously to power, creating a sudden interest in
      what happens if a vacancy in the Speakership were to

      But it should have been newsworthy a long time ago,
      because the provision simply is unconstitutional--one
      of several the House enacted at the instigation of
      Hastert and Rules Chairman David Dreier (R-Calif.) to
      try to show they were attentive to the problems of the
      continuity of Congress if and when a devastating
      terrorist attack or other catastrophe hit the Capitol.

      As Roll Call noted, the House now has a list of
      Speakers-in-waiting. “If Hastert left the Speaker’s
      office immediately, for whatever reason, the first
      Member on the list--which was written by Hastert
      himself--would be elevated to Speaker Pro Tem and
      could act with all of the constitutional authority
      vested in the office, until the Congress could convene
      to duly elect a Speaker by the full House.”

      Article I, Section 2 of the Constitution says, “The
      House of Representatives shall chuse their Speaker.”
      It doesn’t say, “The Speaker shall unilaterally chuse
      the next Speaker, and keep it secret until the
      announcement is made.” There is no way the framers
      would have countenanced this kind of rule. Of course,
      Hastert and Dreier, and their co-conspirator,
      Judiciary Chairman Jim Sensenbrenner (R-Wis.), were
      banking on the reluctance of any court to challenge
      Congressional procedures, and the fact that the
      challenge, if it came, would not have standing until
      the rules provision was triggered.

      This rules change was implemented in conjunction with
      another change that allowed the Speaker unilaterally
      to change the constitutional quorum requirement--a
      flat and clear requirement that half of the Members of
      the House be present to conduct official business--to
      account for significant incapacitation, presumably in
      the face of a terrorist attack.

      In this case, the ringleaders of the change ignored
      the strong advice of the one hapless constitutional
      scholar who said this provision was OK--at least as
      long as it received the joint concurrence of the
      Speaker and the Minority Leader and gave the power to
      the Speaker alone. Even this lone scholar, Walter
      Dellinger, did not say the provision was
      constitutional--only that it would not be challenged
      in the aftermath of a catastrophe. Every other
      scholar, from left and right alike, said this move
      directly would contravene the plain language of the
      Constitution. But that did not faze Hastert, Dreier,
      or Sensenbrenner.

      The way the House handled the continuity issues
      offered a window into Hastert’s vision of his role as
      Speaker--not one that’s out to protect the sacred and
      vital role of the House, or to show a sensitivity or
      fealty to the Constitution or Article I, but rather an
      extension of the “ends justify the means” approach
      that was applied to legislation and rules alike. We
      did not need the scandal involving former Rep. Mark
      Foley (R-Fla.) and Congressional pages to understand
      the impact of this tunnel vision.

      On another front: The president this week, to great
      fanfare, signed the terrorist tribunal bill. Here was
      the headline on House Majority Leader John Boehner’s
      (R-Ohio) press release: “Boehner Highlights GOP
      Victory on Terrorist Tribunal Bill as President Bush
      Signs Measure to Put Terrorists on Trial for Their
      Crimes; Democrats’ Opposition to Terrorist Tribunal
      Bill Another Vote to Undermine National Security.”
      Ignore the politics of the subhead to look at this
      bill in another way.

      This week, “60 Minutes” had a piece on the Duke
      University lacrosse players’ rape charges, one that
      made a powerful, compelling and irrefutable case of
      prosecutorial misconduct by District Attorney Mike
      Nifong. Anyone following the case who had read the
      several detailed, meticulous and even more devastating
      pieces by Stuart Taylor Jr.--the thoroughly
      independent and expert legal analyst for National
      Journal--would not have been surprised. Taylor had
      dissected the evidence and the timeline, and long ago
      concluded that this case was a miscarriage of justice
      and showcased misconduct by the prosecutor and the

      In the interest of full disclosure, I am friends with
      the parents of David Evans, one of the three students
      charged in the case. (David’s father is a law partner
      of my wife.) But I want to reflect on this case only
      because it is a useful example that underscores my
      misgivings about parts of the terrorist tribunal bill.

      There are no powers of government more significant or
      far-reaching than those of policing and prosecution.
      For whatever reason--including that police and
      prosecutors may hold sincere beliefs that someone is
      guilty of serious crimes--they can push the process,
      stack the evidence, ignore contrary evidence and even
      use the coercive power of forcing a defendant to take
      on the staggering costs of a criminal trial to force
      confessions or plea deals and ruin peoples’ lives.

      This is not routine or common; most prosecutors, as
      most police, exercise the appropriate mix of
      aggressiveness and respect for due process and the
      rule of law. But some do not, and the pressure to cut
      corners is especially great if public opinion is
      exercised over a traumatic event or a terrorist

      I am stunned that more conservatives--people who have
      a genuine disdain for big government and the abuses
      that can occur by the power vested in the state--have
      not shown more unease about prosecutorial and police
      power, or more sensitivity to making sure that checks
      and balances are in place to prevent or reduce abuse.
      Habeas corpus is at the root of such concern.

      True, Americans are unlikely to show compassion for
      terrorists who are out to kill as many of us as they
      can. But we are not talking about the rights of
      terrorists; we are talking about the rights of those
      accused of being terrorists. And we already have seen
      cases of mistaken identity that might not be uncovered
      if our system of checks and balances is shredded. The
      terrorist tribunal bill is a better one because of the
      principled intervention of Sens. John McCain (R-Ariz.)
      and Lindsey Graham (R-S.C.), among others. Sadly, they
      did not hold to their principles enough to make it a
      good bill.

      Norman J. Ornstein is a resident scholar at AEI.
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