Rules Changes through Precedent: History and Consequences
Don Wolfensberger wrote a nice piece on the parallels between Majority Leader Reid’s nuclear option and Speaker Reed’s ruling in 1890 that eliminated dilatory motions in the House. Both are good examples of rules changes through precedent. The two were so similar it was the first example that came to mind as Majority Leader Reid went nuclear and changed the Senate. I mentioned it on twitter but I don’t believe I blogged it. So in addition to Wolfensberger’s post there are some important, though wonky, differences between the two tactics. Unfortunately, the trajectory we’re on has consequences for our system of government.
Speaker Reed and 1890
In the 51st Congress the House was in a similar situation as today’s 60-vote Senate. Republicans held a slim majority in the House. The history books will show that Republicans held 179 to Democrats 152. However, at the beginning of every Congress it was not unusual for contested elections cases to continue well past the first day of Congress. That meant that several members who sat in the 51st Congress did not join the House until well after Congress’s March opening date.
Compounding those absent members were the troubles of 19th Century travel and medicine. Many members were absent due to illness, a sick spouse or child, and difficulty traveling to the nation’s Capitol. In 1889 the travel experience from California to Washington D.C. was neither particularly fast nor carefree.
For House Republicans in the 51st Congress these difficulties contributed to a voting majority much narrower than their official seat advantage. At the very outset of the Congress, the Republicans voting majority was actually just short of the chamber majority required in the Constitution. While they had more seats than Democrats, they often had less than a majority of the House. That meant if Republicans wanted a constitutional majority required to legislate, they had to rely on Democrats to vote. They didn’t need Democratic votes to win the votes. But they did need them to vote “nay,” so that their vote would count toward a chamber majority necessary to pass bills.
As you can imagine, House minorities were not all that keen to let majorities legislate. When a request for the yeas and nays was ordered and the clerks called the roll, minority members would sit silent in the chamber. By not responding, they were considered absent. When the final tally was counted, the House lacked a quorum and could not pass bills. This was how the disappearing quorum – which was also called a filibuster in its day – worked.
In years when the majority had a narrow seat advantage this became the norm. Reed, as the incoming Speaker of the House, knew this was something Democrats planned to use in the 51st Congress. He also knew Republicans would barely, if ever, be able to marshal a chamber majority.
So prior to convening the Congress Reed and his lieutenants devised a plan. First, Republicans did not adopt any rules for the 51st House. This is normally the first order of business in the House. However, adopting new rules reported from the Rules Committee would require a majority vote that Republicans did not have. So instead, they decided to operate under general parliamentary law. Put differently, they operated under Jefferson’s Manual and House precedents. This gave Reed the ability to rule the House based on whatever he assumes to be parliamentary, so long as a majority of voting members sustained his ruling.
This set the stage for Reed to dismantle the disappearing quorum. In January of 1890 Reed called up an elections case from West Virginia. After the vote, Minority Leader, and former Speaker, Crisp (D-GA) made a point of no quorum. Reed then ordered the clerks to count the members that are present but not voting and to add them to the roll call.
Unfortunately for us, the fireworks of the Reid’s nuclear option paled in comparison to the violent response from the Democratic minority in 1890. According to Speaker Reed’s parliamentarian, “pandemonium reigned in the House for several hours.” Members charged the front of the chamber crying foul. Speaker Reed, however, remained cool. At one point, a member charged the Speaker yelling, “I deny you the right to count me as present!” Reed, known for his cool wit, responded, “The Chair is making a statement of fact that the member from Kentucky is here. Does he deny it?” (Alexander 1916, 168).
Later that Congress, Republicans adopted new rules, by majority vote, that included quorum counting among other changes that pinched down on minority rights in the House. From that day forward the House was a different institution.
Differences and Implications
Given this context, there are a couple differences between Speaker Reed’s quorum counting and Majority Leader Reid’s nuclear option. First, the House intentionally refused to adopt rules in order to change precedent. The Senate does not have this luxury. It is a continuing body. Meaning, it does not adopt new rules at the beginning of a new Congress. A new Senate is bound by the rules of the previous Senate. Because there is never a lapse in rules, Reid had to interpret the rules through precedent. This is the inverse of Speaker Reed’s tactic of establishing a precedent and then using that precedent to enact new rules of the House. It also creates a more precarious tension between chamber rules and chamber precedents.
Second, there is a significant trigger point that I imagine will come into play as the Senate continues to debate the filibuster. Senate rules require a two-thirds majority to change chamber rules. At what point will the Senate invoke that clause on future interpretations of the filibuster, for say legislative filibusters? Since interpretations are done through appeals of the chair, which are sustained or overturned by a majority, the voting requirements for a rules change and precedent change do not match. Here is the million dollar question: which is more constitutional? Today’s partisans are obviously willing to reinterpret inconvenient rules. The next question becomes, which take prominence? Do the rules of the chamber or the adoption of a new precedent dictate Senate process?
I don’t believe it will come to this in the near future. There are enough procedure stalwarts in the chamber to ward off this kind of tactic in the short-term. However, partisan guerrilla warfare has been boiling over in the Senate in the last decade. So much so that members of Congress have filed several lawsuits in court to adjudicate their own processes. I would not be surprised if a future majority reinterprets the filibuster entirely. And if that is the case, it may be the first time in congressional history that a court will have to decide which rules and precedents will govern Senate process.
This is a somewhat dangerous trajectory. If this were to happen Congress would not just be losing power to the presidency but also to the courts. Partisan procedural tactics threaten to slide America’s First Branch into third. At that point, the branches furthest from the people will also wield the most power. Anyone who can count and has looked at the articles of the Constitution should be concerned.