As Republicans search for someone to succeed John Boehner as speaker of the House, some have suggested bringing in an outsider, such as former House speaker Newt Gingrich or Colin Powell, the former secretary of state and onetime chairman of the Joint Chiefs of Staff.
But does the speaker have to be a member of the House?
The Constitution is silent on that question, saying simply, "The House of Representatives shall chuse (sic) their Speaker and other Officers."
The Clerk of the House agrees with the office of the House Historian, which says the speaker "has always been (but is not required to be) a House Member."
Most historians and legal experts who've looked at this issue conclude the founders simply assumed the speaker would be drawn from among elected members.
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"It would have been unthinkable for the most populous house not to have its leader be part of the representatives who were elected by the people," says David Forte, a constitutional scholar at Cleveland State University.
"Nothing fits that would make the speaker anything other than a member of the house," except for the Constitution's silence on the issue, Forte says, noting that the Articles of Confederation said members of Congress shall have authority "to appoint one of their members to preside."
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The Massachusetts Constitution of 1780, an influential document for the framers, had similar language.
But given the Constitution's silence on the matter, what if the House did elect an outsider to be speaker? Someone affected by a law passed during a Congress that included a non-member speaker could file a lawsuit, but such an effort probably wouldn't go very far.
The federal courts — and especially the Supreme Court — are reluctant to wade into cases that raise such purely political questions.
"There's no way the Court's going to get involved in that. Such internal aspects of each branch of government are appropriately untouchable by another branch. And that certainly would be one," Forte says.
Bottom line? Though it's inconceivable the framers would have elected an outsider to be speaker of the House, there's nothing to stop the House from doing it now.
