Facing Down the Filibuster: Strange Parallels

by John Lawrence

Here’s the scenario: Reed is fed up with the minority’s obstructions, parliamentary maneuverings and delays that prevent the chamber from proceeding with essential legislative business.  For years, he has been imploring his opponents to cease abusing the rules and allow regular floor business to proceed.  He has made some minor modifications to encourage them to abandon their obdurate stonewalling, to no avail.  Now, exasperated with their petulant interference, he is hatching a plan to change the rules to allow floor business to proceed.

Now, before anyone rushes to post a comment correcting my obvious mis-spelling, let me clarify: I am not writing about Sen. Harry Reid (D-NV), but rather Rep. Thomas Reed (R-ME), who like the current Senate Majority Leader, confronted an obstinate minority bent on tying the operations of the House in knots some 133 years ago.

Reed had just been elected Speaker following the successful Republican victory in the election of 1888 defeating, among others Rep. William McKinley (R-OH) who would be elected President in 1896 (with Garret Hobart of Paterson, NJ as Vice President) and 1900 (with Theodore Roosevelt of NY replacing the recently deceased Hobart).  In keeping with the standard of the times, the first long session of the 51st Congress did not convene for nearly a year after the election, in December of 1889.

Reed already had experience with the misuse of the House rules by the minority.  In 1882, as chairman of the Rules Committee considering whether to seat a newly elected Member, Reed had submitted a report to the Speaker.  That report recommended that the Speaker end the longstanding practice of allowing the minority to offer interminable adjournment motions as a device for extracting compromise..  The minority excoriated Reed, but the modification was accepted and the filibustering of election results ended.

As Speaker himself in 1889, Reed had more expansive goals, ones that would permanently alter the traditional operations of the floor and convert the House into a mostly majority-run institution.  As with Sen. Harry Reid’s current obstructionists, the issue revolved around use of the rules by the minority to delay proceedings and extract compromises.  With a margin of only 5 votes, Reed needed extreme discipline from his own Republicans – not a common trait among House Members at the time – because he could not count on Democrats to support his legislative agenda.

Once again, the immediate fight involved disputed House seats, 17 in all, that could determine control of the House itself.  Democrats were in no mood to make life easy for Reed, and resorted to a favorite minority stall – refusing to vote “present” during quorum calls despite physically being on the floor.  (These days, House Members wishing to avoid tough votes have the luxury of cowering in the cloakroom, as several Republicans did on opening day 2013 when they balked at voting for Speaker Boehner’s re-election).

When all but 3 Democrats remained quiet during the quorum call, leaving Reed short of a proper quorum, the Speaker ordered the Clerk to record as present those Members on the floor who had failed to respond.  Democrats erupted into angry outbursts, as the order altered the quorum rule honored since 1789.  As with Sen. Reid’s proposed rules changes today, one of the loudest objections came from a Kentuckian, Rep. James McCreary, who challenged the towering Reed. “I deny your right, Mr. Speaker,” McCreary told Reed, while standing on the floor, “to count me as present.”  Unamused, Reed noted that McCreary was obviously present and asked the Kentuckian if he was denying so.

The quorum confrontation launched a review of House Rules which was conducted by the House Rules Committee. The Republican majority on that committee consisted of Reed himself and his reliable appointees, McKinley, and future Speaker Joe Cannon, a formidable caucus.

The issue for Speaker Reed (who was thereafter known — not always affectionately — as “Czar Reed”) was the need for the House to be capable of acting rather than vulnerable to being held hostage by a willful minority.  Although his modernizations were condemned as “revolutionary,” and one angry Democrat sputtered that Reed was the “worst tyrant that ever ruled over a deliberative body,” the 51st Congress went on to pass major legislation, including the Sherman Anti-Trust Act and the McKinley Tariff, that might have been stalled permanently in a narrowly divided House handicapped by the traditional rules.

Regardless of one’s view of the value of those, or other bills that became law following Reed’s reforms, the fact remains that a legislative body is elected to legislate, not to allow an obdurate minority to delay and obstruct.  Reed himself asserted, “The rules of this House are not for the purpose of protecting the rights of the minority, but to promote the orderly conduct of the business of the House.”

Reed certainly overstated the role of the rules; protecting minority rights is enormously important in a legislative body if one has any expectation of bipartisan cooperation.  And he and the Republicans paid a price for their parliamentary and legislative aggressiveness, a stunning defeat in the election of 1890.  But interestingly, the new Democratic majority came to accept most of the Reed Rules and by the time the Republicans regained the House, the reforms were widely accepted.

The parallels to the procedural fiasco playing out in today’s Senate are more significant that the phonetic coincidence of Speaker Reed and Sen. Reid’s names, or the common state residence of Rep. McCreary and Sen. McConnell.  The experience of the Reed Rules illustrates the great dangers the majority faces when tampering with long-established rules that allow the minority wide flexibility to interfere with normal operation of the institution.  But no majority can permit the minority to interfere with even the most ministerial of legislative functions.  The inaction achieved by McConnell’s habitual dilatory behavior is interfering with essential functions of government, which is, of course, his intention: keep judicial seats unfilled, weaken the Federal Elections Commission and the National Labor Relations Board, deny the Environmental Protection Agency an administrator, and many other actions.  And then complain that government isn’t functioning efficiently, and inflame public disdain at Congress and Washington.

There are many risks that would stem from weakening the Senate’s 60 vote filibuster rules; a switch of a few seats, which Reid has miraculously prevented from occurring in two election cycles, could deliver the Senate to Republican hands, and major Democratic legislative achievements would be at risk.  But no reasonable objection should be raised to freeing up presidential nominations from interminable delays that discourage qualified people from seeking appointments.

McConnell talks of the filibuster rule as though it were a sanctified, Constitutionally-protected principle, but in fact, there is no such protection in the Constitution for unlimited debate in the Senate.  There is a tradition, and it should be largely honored; but that doesn’t mean it can’t be abused. Like his Kentucky ancestor, Rep. McCreary, Sen. McConnell may wish he could pretend he wasn’t on the floor and did not bear responsibility for his actions.

NOTE: Earlier this year, I noted that Rep. Rick Nolan (D-MN) was the new record holder for returning to Congress after an absence: 32 years!  Next week, when Rep Ed Markey (D-MA) hands in his House voting card for a senator’s pin, he will (I am pretty certain) be the new record holder for House service prior to election to the Senate – 37 years!  Currently #8 in House seniority, he will become the most junior Member of the Senate.