Balkinization: Thomas Reed and Institutional Reform

Thomas Reed and Institutional Reform

Gerard N. Magliocca

I just finished James Grant's new book on Thomas "Czar" Reed, the Republican Speaker of the House in the 1890s who reformed the chamber's rules. The book is not well-written, but Grant's account is worth reading if you are pessimistic about the paralysis in our political institutions.

During the 1870s and 1880s, bills that sailed through the Senate were frequently filibustered in the House of Representatives. That sounds impossible--the House is supposed to be the majoritarian body, right? At that time, though, a minority in the House could engage in a wide variety of dilatory tactics. The most common was that members could refuse to vote present and thereby deprive the House of a quorum (at least when the majority did not have many votes to spare). The House was also often tied up in knots by motions to adjourn, debates over the Journal, and obscure parliamentary inquiries. If Sandy Levinson had been around then, he probably would have denounced the "egregious House of Representatives."

Though Reed used these stalling maneuvers when he was in the minority, as Speaker he invoked "general parliamentary law" and started ruling filibusters as out of order while counting present members as present whether they voted that way or not. (Reading the record where "absent" members protested being counted as present is pretty funny). Reed then pushed through a new set of rules that gave the majority the right to push its bills through, which is basically how the House functions today.

Nothing prevents the Senate from doing something similar at the start of 2013. The equivalent of "general parliamentary law" is the nuclear (or constitutional) option, which allows a ruling of the presiding officer to alter the Senate rules, backed by a simple majority that tables any appeal from the chair's decision. For those who think that the Senate's culture of delay will never change, that was what people said about the House of Representatives in the nineteenth century. But it did.

Posted 9:08 AM by Gerard N. Magliocca [link]

Comments:

Gerard:

Nothing prevents the Senate from doing something similar at the start of 2013. The equivalent of "general parliamentary law" is the nuclear (or constitutional) option, which allows a ruling of the presiding officer to alter the Senate rules, backed by a simple majority that tables any appeal from the chair's decision. For those who think that the Senate's culture of delay will never change, that was what people said about the House of Representatives in the nineteenth century. But it did.

Unless the GOP gains 16 seats during the 2012 election (giving them 60 seats in addition to the less than reliable Scott Brown and the Maine sisters), the only way the Republicans can repeal the various Obama bills and even more importantly the massive regulatory tidal wave is to finally put a stake in the filibuster. I assure you that we in the Tea Party will be putting tremendous pressure on the GOP to enact a comprehensive repeal, so perhaps the Senate may actually follow the path of the Reed House.

Under those circumstances, I will be interested to see if progressives like Sandy Levinson maintain their support for eliminating the filibuster.

# posted by

Bart DePalma : 1:38 PM

Bart:

It's worth noting that plenty of liberals like Matt Yglesias and Kevin Drum called for the elimination of the filibuster during the Bush years when Dems were using it.

So there are at least some consistent types on the left.

# posted by

Dilan : 2:26 PM

Dilan:

I am not at all sure the GOP senate old bulls will go along with a filibuster repeal even if they need it to get legislation through.

I suspect it will be easier for the Tea Party to elect a GOP president and senate in 2012 than it will be to get them to do what we sent them to do.

2013 will be the real test of the Tea Party movement.

# posted by

Bart DePalma : 2:52 PM

Having a powerful leader, especially one elected and picked as speaker not just seen as a ceremonial head of the body, in those days "push" things through is a tad easier than have the "Senate" change, particularly given the House was always seen as more of a majoritorian body, so that sort of thing would be more easily seen as illegitimate.

# posted by

Joe : 3:41 PM

Bart

You probably didn't like McCain-Feingold very much, but the PROCESS that led to its passage is probably the model for any sort of filibuster reform. You need to identify politicians on both the left and the right who buy into the reform and are willing to do it even if they are told by leadership that it is against their self-interests. Get enough of them and it will force the passage of the reform, though it will take time to achieve.

# posted by

Dilan : 4:30 PM

Dilan:

The Dems had the opportunity to eliminate the filibuster when they were struggling to enact Obamacare and did not even attempt to do so.

Do you think the Dems will be more inclined to eliminate the filibuster after so many of their number went down to defeat in 2010 and 2012 for enacting the largest expansion of government since the New Deal in order to make it easier for the GOP to reverse that expansion?

I think not.

A GOP majority leader and a GOP majority will have to do the job alone - if they are willing.

# posted by

Bart DePalma : 4:45 PM

Bart:

I think you underestimate the effect to which the last few years have soured people on the left on the utility of the filibuster.

the fact that many Dem Senators still support it is no more surprising than the fact that many Republican Senators do.

There's always going to be institutional elements of both parties who support the filibuster. The question is whether there are enough votes to overcome that.

# posted by

Dilan : 5:32 PM

Gerard's:

"If Sandy Levinson had been around then, he probably would have denounced the 'egregious House of Representatives.'"

is a reminder: where is Sandy today and what would he say about this post?

*******

Gerard, I'm curious, does the book make reference to Thomas Reed Powell, my con/law prof in 1952, as being related to Thomas B. Reed? Powell, who was born in Vermont in 1880, had as his middle name his mother's maiden name.

# posted by

Shag from Brookline : 7:40 AM

Shag:

I thought Sandy posted he was going to out of country for a couple months.

# posted by

Bart DePalma : 9:59 AM

Dilan said...

I think you underestimate the effect to which the last few years have soured people on the left on the utility of the filibuster.

I don't disagree. My point does not concern the people, but rather a senate establishment protecting its prerogatives.

# posted by

Bart DePalma : 11:23 AM

Glad to see that someone besides me is reading the book. I have also been disappointed with the book; I would have expected more background about how the House had come to operate the way it did when Reed found it. Especially given that the country had gone through the 1840s-1850s when the Whigs and Democrats both parties had a northern and southern wing; the breakdown of that system during the run-up to the Civil War; and the rise of the Democratic Party as Southern-based party whose politics sought to overturn the outcome of the Civil War during Reed's time, one would have expected there to have been corresponding changes in Congressional procedures. Yet when we first encounter Reed in Congress in 1877, the Rules Committee is already the critical gatekeeper and the Committee of the Whole had long been the operative body of the House (which I believe dates back to the first Congress) as they have never been in the Senate. It seems to be the idea of book publishers that it's impossible to sell a history book without compelling personal stories, and except for his wit and support of women's suffrage, there is not much compelling about Reed's personal story, but there is quite a story to be told about the way Congress became what is was/is. Maybe that story has already been told by Mark Twain.

# posted by