15 Votes Later: A Comparative Analysis of the Speakership in Australia and the United States
Dane Luo
23.02.2022
early January, the world watched in disbelief as the US House of Representatives went through vote after vote to elect a Speaker. The chaos stemmed from 19 Republican Representatives (joined later by one more) who rebelled against the House Republican Conference’s pick of Kevin McCarthy for Speaker. The GOP leadership scrambled to negotiate with the holdouts. There were phone calls from former President Trump, deals between rival political action committees and a physical altercation almost took place on the chamber floor. Democrats watched on in shock with popcorn, blankets and books with very subtle messaging. Eventually, McCarthy paid a big price to get the holdouts on his side — an agreement was reached that included the motion to vacate, votes on conservative policies and potentially lucrative committee positions. Four days and 15 votes later, at the stroke of midnight, McCarthy was elected Speaker.
It begs the question: would such a messy, protracted political battle for the position of Speaker happen in Australia? In short, the answer is no. The role, powers and conventions surrounding the Speakership in Australia and the US are so different that similar events are highly unlikely to happen in Australia. To demonstrate why, this article will compare and contrast the role, powers, and method of electing the Speaker in these two countries. References to the ‘Australian House’ and ‘US House’ (and ‘Australian Speaker’ and ‘US Speaker’) are to the federal House of Representatives (and respective Speaker) in those nations.
Origin and Role of the Speaker
The first Speaker was chosen by the UK House of Commons in 1377 to act as a mouthpiece or spokesperson of that House to the King. Early Speakers reluctantly accepted the position because ‘the role of spokesman for an emerging body of legislators bent on opposing the royal will was a dangerous occupation’ (P Laundy, The office of Speaker (Cassell, 1964) 16). Over time, the position evolved into an office of great importance. The modern-day Speaker in the UK, US and Australia is the presiding officer of the House, responsible for maintaining order and applying the various practices and procedures of the House, and performing administrative responsibilities relating to the legislature.
The US Speaker began from its Westminster traditions as a ceremonial and impartial office. One famous Speaker described the early Speakers as having ‘come to this chair to administer [the] rules, but not as a partisan.’ However, that neutrality subsided when Speaker Henry Clay in 1811 began aggressively pursuing a partisan policy agenda, participating in debates and even endorsing presidential candidate John Quincy Adams when no candidate received an Electoral College majority in 1824. From then on, it became increasingly common for Speakers to be elected by the House on the basis of the policy agenda that they would pursue, including whether they were pro- or anti-slavery. As the Democrat and Republican parties began to dominate US politics, the Speakership was often elected along partisan lines from the leadership of the party that commanded a majority in the US House. Thus, they often became the de facto ‘majority leader’ of the House until a separate office with that title was brought into existence in 1899. But by then, it had become a well-established convention that the Speaker was the leader of the majority party – a convention that remains today. (In stark contrast, the leader of the government in the Australian House is the Prime Minister.) Thus, the US Speaker is a very active political figure and the office has been coloured as a political one.
McCarthy was chosen by the House Republican Conference as the party’s nominee for Speaker and was (finally) elected to that office by members of the Republican majority. Under the Presidential Succession Act of 1947, McCarthy is second in line, after the Vice President, to succeed the President. McCarthy’s election as Speaker is highly significant because both the current President and Vice President are Democrats. This makes McCarthy, a Republican, the highest-ranking member of the opposing party and thus gives him a similar platform to that of the leader of the opposition in Australia.
The Australian Speaker retains more of the hallmarks of the UK model than its American counterpart. For one, they are expected to remain unscrupulously impartial in the discharge of their duties. Indeed, House of Representatives Practice (6th ed, 2012) (HOR Practice) states that ‘[o]ne of the hallmarks of good Speakership is the requirement for a high degree of impartiality in the execution of the duties of the office’ (at 163). Where the Australian Speaker has any discretionary power, it must be exercised impartially in accordance with convention, previous rulings or after consultation with both the government and opposition. For example, s 40 of the Constitution makes clear that the Speaker must not vote unless there is an equality of votes, which then enlivens, according to then-Solicitor-General Stephen Gageler, a ‘duty’ to make a casting vote. But in making that casting vote, the Speaker votes in accordance with well-established principles to further debate and to vote against bills or motions that do not otherwise have majority support. Even where the Standing Orders empower the Speaker to exercise discretion, such as to set an alternative day and time for the House to meet, the Speaker will act on advice from the government (HOR Practice at 175).
Unlike the US Speakers being party leaders, Australian Speakers have generally been government backbenchers with considerable parliamentary experience. The current Australian Speaker, Milton Dick, is a Labor member and was chosen by the Labor caucus under a factional deal that gave Dick, a member of the right faction, the Speakership whilst left faction member Sue Lines was elected as President of the Senate. Although generally remaining affiliated with their political party (with Speaker Peter Slipper as a notable exception – more on this below) and campaigning as a party member during elections, Australian Speakers employ a ‘pragmatic model’ to appear impartial when the House is sitting. This means they do not attend caucus meetings or participate in parliamentary debates. This model is supported by ‘deep roots in our little appreciated parliamentary history and in the wider Australian “fair go” ethos.’
Powers of the Speaker
The powers of the Speaker also vary greatly between Australia and the US. The Australian Speaker presides over, represents and administers the House. They interpret and apply the Standing Orders, deal with points of order and discipline members (including calling members to order or directing their removal from the chamber) and can refer matters to the House’s Privileges Committee. The Australian Speaker administers the parliamentary precincts jointly with the Senate President and can exercise other statutory powers. They also perform various constitutional functions, including receiving resignations from members (s 37) and issuing writs for by-elections to fill casual vacancies (s 33). It is noteworthy that the Australian Speaker plays no role in determining the business before the House. Instead, the Notice Paper and Daily Program (which sets out the order of business) is prepared by the Clerk with government business determined by the Leader of the House (who is a government minister) and other business negotiated between government and opposition ministers and whips.
The US Speaker performs a similar role and presides over House debates, administers the Capitol buildings and performs other functions. In light of their role as a leader of a political party within the US House, the powers of the US Speaker include setting the House’s legislative agenda and controlling committee assignments. The Speaker is especially powerful because they personally nominate 9 of 13 members of the Rules Committee (colloquially known as the ‘Speaker’s Committee’). As the Rules Committee controls the flow of business and legislation to the floor, the Speaker effectively has direct control of this process, allowing them to be a ‘gateway’ and having the final say about advancing or blocking consideration of any measure. Where the Speaker is from a different party to the President (as is the case now), the Speaker can effectively stymie the President’s legislative agenda. The only way that members can bring items to the floor without the Speaker’s blessing is by bringing a ‘discharge petition’, which requires an absolute majority of the House – an impossible threshold for the minority party unless majority members publicly defect.
It is the ability to determine the agenda on the House floor and committee memberships that gives tremendous power to the US Speaker and empowers them to make political (and sometimes controversial) decisions to advance their party’s agenda. For example, Speaker Nancy Pelosi rejected the nomination by then-Minority Leader McCarthy of two Republican members that would sit on the January 6th Select Committee on the basis that those members actively objected to the certification of the Electoral College votes. In response, McCarthy refused to nominate any Republicans to the committee. Pelosi then nominated two Republicans who had supported the second impeachment of President Trump. More recently, McCarthy has indicated that he would reject the recommendation by Minority Leader Hakeem Jeffries to appoint two Democrats to sit on the Intelligence Committee. One of those individuals – Rep Adam Schiff – is the most senior Democrat on the committee.
Some have suggested that the powers of Speaker McCarthy may have diminished following the deal reached to secure his Speakership. That deal apparently provides for three seats for the conservative Freedom Caucus on the Rules Committee. If those three members join with the four Democratic members, McCarthy will not have a majority on the 13-seat committee. This was described as the ‘most significant surrender of leadership power … seen in decades’. The last time this occurred was in 1960 when two ‘Dixiecrats’ (southern Democrats) joined with four minority Republicans to frustrate Democratic Speaker Sam Rayburn’s social legislative agenda. The standoff eventually subsided when Rayburn expanded the size of the committee and appointed members loyal to him. Only time will tell just how far McCarthy’s powers go under his Speakership.
Notwithstanding the potential weakening of the US Speaker’s power over the Rules Committee, that role remains significantly more powerful than the Australian Speaker.
Election of the Speaker
The US Constitution provides that ‘[t]he House of Representatives shall chuse their Speaker’. Under current practice, this involves a roll call vote by all members-elect in each new Congress. A candidate is elected if they obtain a majority of all votes cast. If each of the 435 members-elect are voting, a candidate must obtain 218 votes. It is for this reason that only members of the majority party have historically been elected. A member of the minority party could only be elected if members of the majority defect, which is highly unlikely.
However, in the 2023 Speaker elections, the 19 (or 20) holdouts voted for other individuals in the first 14 ballots so that no person was able to obtain the required majority. This was permissible because there is no rule that requires the members-elect to vote for a nominated candidate. Indeed, during the 14 inconclusive ballots, some of the holdouts voted for people who were no longer members of the House and even former President Trump (who never served in the House). This too was permissible because there is no requirement that the Speaker even be a member of the House, although every Speaker so far has been. It was only in the 15th count, when the remaining six holdouts voted ‘Present’ and thus lowering the threshold for a majority vote, that McCarthy was able to be elected with 216 votes.
Section 35 of the Australian Constitution requires that the Australian House choose a Speaker ‘before proceeding to the despatch of any other business’. The procedure for the election of the Speaker is contained within the House of Representatives Standing Orders (SO). The procedure involves a secret ballot by all members. Like the US Speaker, the Australian Speaker must achieve a simple majority of votes cast. However, there are two key differences that ensures a faster resolution of the Australian process compared with that which occurs in the US House. First, the ballot papers must contain the name of a nominated candidate, who must be a Member of the House (SO 11(i)). Secondly, SO 11(i)(i) provide that ‘[i]f no nominee has a majority after a ballot, the nominee with the smallest number of votes shall be excluded from later ballots, and a fresh ballot shall be held’. This ensures that the process continues until a nominee has the required majority.
15 Votes to Elect an Australian Speaker?
The election of presiding officers in Australia has not been without controversy. In 1911, when the first Labor Government lost its majority in the NSW Legislative Assembly, Acting Premier William Holman persuaded a renegade Liberal member, Henry Willis, to nominate as Speaker. This ensured that Labor could remain in office. The Liberal Party was outraged and commenced a filibuster to prevent Willis taking the chair. HV Evatt described that, after Willis was nominated by two Labor MPs, ‘[u]nspeakably vile language was used by some Opposition members, and the Hansard staff was unable or unwilling to take down every insult. The attacks on Willis were continued without cessation throughout the night. … Leading Opposition members competed with one another in the violence of their epithets’. As the Opposition did not nominate a candidate, Willis was elected Speaker. David Clune recounted that Willis’ Speakership was ‘marked by constant disorder’, ‘disreputable events’ and he ultimately ‘proved to be an unsuccessful, unpopular and unworthy presiding officer’.
In 2011, following the surprise resignation of Labor Speaker Harry Jenkins, the Labor Government nominated LNP member Peter Slipper to be Speaker. The effect of switching the Speaker from a government to an opposition member was that the government would make a net gain of two votes in a division. This was crucial to the government who did not have a majority in its own right. Opposition Leader Tony Abbott accused Prime Minister Julia Gillard of ‘want[ing] [Jenkins] gone to shore up her position in this parliament’. Furious at the government’s manoeuvre, the Manager of Opposition Business Christopher Pyne proceeded to individually nominate nine government members in the hope that just one of them would agree to be Speaker. In a great display of party discipline, each of the government members refused to accept Pyne’s nomination, which made them all lapse. The whole saga, which lasted over 30 minutes, resulted in Slipper being elected unopposed. Slipper resigned from his LNP membership and served as an independent.
In 2021, the election of the President of the NSW Legislative Council (the Speaker equivalent in the NSW upper house) was also heavily contested. A factional deal within the Liberal Party was intended to give Natasha Maclaren-Jones of the soft right faction the Presidency whilst Peter Poulos of the moderate faction would fill a casual vacancy. However, Maclaren-Jones, who was the Liberal Party Whip, was perceived by Labor and crossbenchers as too loyal to the Premier and as such, without the necessary independence for the role. In March 2021, Maclaren-Jones received 20 votes, Peter Primrose (Labor’s candidate) received 14 and there were eight informals. The Clerk declared that neither Maclaren-Jones nor Primrose were elected because the Standing Orders require a majority of the votes of the members present (of which there were 42). However, the Crown Solicitor stated in an advice that only a simple majority was required, a view also taken in independent legal advice from Bret Walker SC. When Parliament resumed in May, Maclaren-Jones took the Chair and was met with unprecedented disorder and disruption. The Legislative Council swiftly passed a motion of no confidence in Maclaren-Jones 22 votes to 16. Then, Liberal member Matthew Mason-Cox nominated himself and was elected with the support of Labor and the crossbench – 23 votes to Maclaren-Jones’ 18. Enraged that Mason-Cox defied the party line, Mason-Cox was expelled from the Liberal Party, which Premier Gladys Berejiklian justified on the basis that ‘[t]here is party discipline and party rules people have to follow’. Mason-Cox’s membership was reinstated two weeks later.
Here, a key distinction is revealed. Whilst controversies about the US Speaker concern what power they wield and how they would wield it, controversies involving the Australian Speakership tend to be for the purpose of gaining an advantage when there is a closely-divided House or hung Parliament. This likely stems from two reasons. The first is the fact that the Australian Speaker does not vote in a division unless the numbers are equal – a limitation that does not apply to the US Speaker. The second is the nature of the office. In Australia, the office commands tremendous respect and embodies the dignity of the nation’s representative assembly’ (HOR Practice at 164). The need to show respect is manifested in the practices of members bowing at the Speaker when entering and exiting the chamber (SO 62(b)), addressing their remarks to the Speaker (SO 65(a)), resuming their seats immediately when the Speaker stands (SO 61(a)), allowing the Speaker to be heard without interruption (SO 61(a)), not passing between the Speaker and member speaking (SO 62(d)), and, when the House is adjourned, not leaving the House before the Speaker (HOR Practice at 165).
Overall, the institutional role, powers and conventions surrounding the Speakership in Australia and the US are so different that events that recently occurred in the US House are highly unlikely to ever happen in Australia. Indeed, the dignity and respect accorded by members of Parliament to the Australian Speaker protects that office from having the prolonged, embarrassing set of votes and backroom deals in the lead up to McCarthy’s election. 15 votes later, this is a timely reminder that democratic institutions, whilst fragile, derive their strength from the conventions and respect developed over decades and centuries of practice.
Dane Luo is a Bachelor of Commerce (Honours I) / Bachelor of Laws (Honours I) graduand at the University of Sydney and a former legislative staff intern for a Congressman at the US House of Representatives. He is currently the Associate to the Chief Judge in Equity at the Supreme Court of New South Wales. This article was written in a personal capacity and does not necessarily reflect the views of any current or past employer.
Suggested citation: Dane Luo, ‘15 Votes Later: A Comparative Analysis of the Speakership in Australia and the United States ’ on AUSPUBLAW (23 February 2023) <https://www.auspublaw.org/blog/2023/2/15-votes-later-a-comparative-analysis-of-the-speakership-in-australia-and-the-united-states/>