10 March 21
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FOCUS: We Already Got Rid of the Filibuster Once Before
David Litt, The Atlantic
Litt writes:
The House used to have a filibuster too. And when legislators got rid of it, the result was a more democratic, productive institution.
ast week the House of Representatives passed H.R. 1, a bill that would make voter registration automatic, end partisan gerrymandering, strengthen campaign-finance law, and bolster oversight of lobbyists. It’s the most sweeping package of democracy reforms in generations. Yet the mood among most democracy reformers was not giddy excitement but resigned dismay: Although H.R. 1 has passed the House, it remains in the pile of campaign promises—a higher minimum wage, an assault-weapons ban, comprehensive immigration reform, the John Lewis Voting Rights Act, and more—that under current Senate rules need 60 votes or more to pass, an essentially insurmountable requirement in today’s deeply polarized, evenly split legislature.
It’s hardly surprising that a growing number of Democratic politicians now want to end the legislative filibuster entirely, or that Minority Leader Mitch McConnell and his fellow Republicans are rallying to its defense. What is surprising, however, is how few Americans know that we’ve eliminated it before: 130 years ago, after a debate that makes today’s seem placid by comparison, Republican lawmakers got rid of the filibuster—not in the Senate, but in the House of Representatives.
The demise of the House filibuster ought to be better remembered, and not just because it’s one of the most dramatic episodes in American political history. The procedural battle that took place more than a century ago holds an important lesson for lawmakers of both parties today: Ending the filibuster may be messy, but it won’t destroy a legislative body. In fact, in a polarized age, the only guaranteed cure for political dysfunction is majority rule.
Like the Senate filibuster, which was created when then–Vice President Aaron Burr accidentally removed a rule permitting a majority of the chamber to force a vote on a bill, the House filibuster was at heart a procedural loophole. In this case, the trick involved the way that lawmakers took attendance. According to the lower chamber’s original rules, lawmakers who voted “yes” or “no” on a piece of legislation were marked present, but those who did not vote at all were marked absent, even if they were standing on the House floor.
This mattered because, like most lawmaking bodies, the House requires a quorum; without a majority of lawmakers present, the chamber grinds to a halt. If the majority party was able to summon a sufficient number of its own members to Washington, it could pass bills as it pleased. But in a pre-aviation age, when lawmakers were frequently days’ or even weeks’ travel from the Capitol, gathering a quorum was extremely difficult. In many cases, members of the minority party could decline to vote and be marked absent, denying the majority a quorum despite being in the chamber. Just as in the Senate presently, a minority of the House could kill a popular bill by denying it an up-or-down vote.
Political scientists today call this procedural trick “the disappearing quorum.” But in the early 1800s, Americans referred to it with a word derived from the flibustier and filibusteros who pirated the seas on behalf of France and Spain. They called the delaying tactic, or hijacking of the legislature, “the filibuster.”
The House filibuster, which began when the House itself did, lasted roughly a century. Then, in the 1888 elections, Republicans won control of the White House, the Senate, and the House for the first time in nearly two decades. In theory, the GOP could finally pass its ambitious agenda. But because its majority in the lower chamber was extremely small—just three votes—Democrats could deny a quorum nearly any time they chose. At the turn of the 20th century, partisan polarization was almost as bad as it is today, which meant that the assumption back then was the same as it is now: The minority party would use the filibuster to completely derail the majority’s legislative agenda.
What no one anticipated, however, was a legislator as devoted to getting rid of the filibuster as Speaker Thomas Brackett Reed. A 6-foot-3, 300-pound Civil War veteran who favored walrus mustaches and all-black attire, Reed first made his name in Congress as a spouter of witty one-liners during debates. But his real genius lay in understanding the House’s rules. Although Reed cherished the lower chamber as an institution, he became convinced that if a minority of lawmakers could kill a bill without allowing a vote on it, the House would become, in his words, “a tyranny.” He grew confident that, because the House rewrites its rules from scratch for every new legislative session, he could eliminate the filibuster with a single, bold stroke. Perhaps most important, he decided that ending the filibuster was worth risking his career over.
“I had made up my mind,” he later said, “that if political life consisted of sitting helplessly in the Speaker’s Chair and seeing the majority helpless to pass legislation, I had had enough of it and was ready to step down and out.”
So at the start of the 51st Congress, Reed did something radical: He took attendance. After introducing a controversial bill that he knew would be filibustered, Reed began a roll call of yeas and nays in alphabetical order, starting with Texas’s Joseph Abbott and ending with Ohio’s Samuel Yoder. This would have been unremarkable, except for one unprecedented change to House procedure: If a lawmaker was physically inside the chamber, Reed marked him as present, whether he voted or not.
Reed’s gambit was a leap into the parliamentary unknown. The disappearing quorum had always been a feature of the House of Representatives, and many members believed, or claimed to believe, that the filibuster was essential to the chamber. When Democrats realized what Reed was attempting—not just to pass a piece of legislation, but to impose majority rule upon the entire legislative body—they rushed to object.
“I deny your right, Mr. Speaker, to count me as present,” protested Kentucky’s James McCreary.
“The Chair is making a statement of fact that the gentleman is present,” replied Reed. “Does he deny it?”
One reason Reed remained calm throughout the exchange was that he knew he was on firm procedural ground—his critics could condemn him, but they lacked the parliamentary power to stop him. Democrats soon figured this out as well. With the disappearing quorum suddenly unavailable to the minority party, its desperate members tried denying a quorum the old-fashioned way: by fleeing the House floor en masse. One lawmaker, Constantine B. Kilgore of Texas, kicked down a door and escaped. But the rest of his Democratic colleagues were blocked by locked exits or found hiding under their desks. After order was restored in the chamber, debate resumed. The furious denunciations that followed make today’s filibuster debate look measured by comparison; one member called Reed’s roll call an act “as violent as was ever witnessed in any parliament.” But after four days of furious speechmaking, Democrats had no choice but to move on. The procedural battle of the century was over. Reed had won.
The filibuster’s defenders warned that the end of the filibuster would fundamentally change the House, and they were right. With partisan control of the chamber no longer threatened by obstruction, party leaders became far more influential. Speakers—not just Reed, but his successors as well—consolidated power at the expense of individual members.
The House also took a populist turn. When tabloid-fueled jingoism swept the country a few years later, America declared war on Spain. This likely would not have happened if anti-war lawmakers, Reed among them, had been able to deny their pro-war colleagues a quorum. It seems likely that eliminating the Senate filibuster today would have similar effects, consolidating power in the hands of the majority leader and making the chamber more susceptible to the fickleness of public opinion.
But despite these caveats, it’s hard not to view the end of the House filibuster as anything but a success for democracy. The 51st Congress, expected to accomplish next to nothing, instead became one of the most productive in history. With full control of government, Republicans passed the Sherman Antitrust Act to rein in big business; established land-grant colleges for Black students in the South; expanded pensions for Civil War veterans and their families; laid the foundation for the National Parks Service; created the beginnings of the federal immigration system; granted statehood to the Dakotas, Montana, Washington, and Idaho; and much more.
Even more telling than the accomplishments of the 51st Congress were the decisions made by the Congresses that immediately followed. In 1891, Democrats regained control of the House and reversed Reed’s rule changes—but Reed, now minority leader, used the reinstated filibuster to such frustrating effect that his opponents had no choice but to re-abolish it two years later. As Reed himself described it, Democrats’ about-face was “a more effective address than any I could make.”
With that full capitulation, the existence of the House filibuster, once so crucial to the chamber, began its slide into obscurity. Today, the laws passed by the 51st Congress continue to shape American life. Yet the procedural debate that made those laws possible—and sent lawmakers running for the exits—is forgotten, even to many of the filibuster’s staunchest defenders today.
Perhaps this is the most important lesson a 130-year-old parliamentary battle holds for lawmakers in 2021: If we end the Senate filibuster, our descendants are unlikely to find themselves longing for its return. If anything, they’ll be surprised that such a bizarre and anti-democratic practice was allowed to hold back progress for so long.
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