The Speaker of the House in the US is not legally required to be an elected member of the House. For example, recently Rep. Jim Cooper (TN-5) suggested Colin Powell for the role. Given that, are there any legal limitations on holding the position? I mean, could the House select just any random person? A child? A non-citizen? Would there be limits on holding a job for two branches of government at once?
Constitutionally, a current member of the Executive branch is prohibited from simultaneously holding office in the Legislative Branch. The Ineligibility Clause (Article 1, Section 6, Clause 2 states:
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Of course, Gen. Powell is no longer Secretary of State, so this no longer applies. Instead, as a private person, the question is, "Does the Speaker need to be an elected member in his own right?" Traditionally, of course, it would be unprecedented. But, I think the case can be made that it is also not allowed.
Technically, there is no rule in the Constitution or the rules of the House that requires the Speaker to be a member of Congress, but the tradition predates the Constitution itself. According to this source:
Under Article IX of the Articles of Confederation (1781), the Congress of the United States had the power "to appoint one of their number to preside, provided that no person be allowed to serve in the office of president more than one year in any term of three years."
According to the rules of the House (Rule 4, Section 2(a)), only the following people are actually allowed to enter the hall:
- (a) Only the following persons shall be admitted to the Hall of the House or rooms leading thereto: (1) Members of Congress, Members- elect, and contestants in election cases during the pendency of their cases on the floor. (2) The Delegates and the Resident Commissioner. (3) The President and Vice President of the United States and their private secretaries. (4) Justices of the Supreme Court. (5) Elected officers and minority employees nominated as elected officers of the House. (6) The Parliamentarian. (7) Staff of committees when business from their committee is under consideration, and staff of the respective party leaderships when so assigned with the approval of the Speaker. (8) Not more than one person from the staff of a Member, Delegate, or Resident Commissioner when that Member, Delegate, or Resident Commissioner has an amendment under consideration (subject to clause 5). (9) The Architect of the Capitol. (10) The Librarian of Congress and the assistant in charge of the Law Library. (11) The Secretary and Sergeant-at- Arms of the Senate. (12) Heads of departments. (13) Foreign ministers. (14) Governors of States. (15) Former Members, Delegates, and Resident Commissioners; former Parliamentarians of the House; and former elected officers and minority employees nominated as elected officers of the House (subject to clause 4). (16) One attorney to accompany a Member, Delegate, or Resident Commissioner who is the respondent in an investigation undertaken by the Committee on Ethics when a recommendation of that committee is under consideration in the House. (17) Such persons as have, by name, received the thanks of Congress. (b) The Speaker may not entertain a unanimous consent request or a motion to suspend this clause or clauses 1, 3, 4, or 5
As I read this list, Gen. Powell might qualify under (2)(a)(17), but if he did not, rule 1(b) prohibits any means under which the definition could be expanded to allow someone who is not already a member or officer to enter. As the first duty of the Speaker is (Rule 1 Section 1):
The Speaker shall take the Chair on every legislative day precisely at the hour to which the House last adjourned and immediately call the House to order
He would seem unable to carry out his duties, and therefore be ineligible to actually serve.
As such, while it is an interesting idea, in practice, I don't think to could happen without a change to the rules.
And, seeing as Gen. Powell may be a Republican, but openly endorsed a Democrat for the Presidency, all I can say is, "Good luck with that."
House Rule IV, section (2)(a)(5) permits:
(5) Elected officers and minority employees nominated as elected officers of the House.
The Constitution writes that the Speaker is an officer:
The House of Representatives shall chuse their Speaker and other Officers;
If the current Speaker stays in office until a new Speaker is elected, then the new Speaker (not currently a Representative) can be elected and enter the Hall.
To add an implicit requirement, the Speaker is in the line of Presidential succession. While the 22nd Amendment doesn’t actually forbid a two-term President from becoming President again by succession rather than by election, it would at best be highly controversial for a two-term President to become Speaker and thus be in a position to potentially become President for part of a third term. And so it will never happen.